Director of Public Prosecutions v Karazisis
[2021] VCC 525
•4 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-20-01681
CR-21-00043
Indictment No. C2013684
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN KARAZISIS and SHANNIN DEI WAL |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 26 March 2021; 31 March 2021 | |
DATE OF SENTENCE: | 4 May 2021 | |
CASE MAY BE CITED AS: | DPP v Karazisis & Anor | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 525 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Sentencing Act 1991; Road Safety Act 1986
Cases Cited:R v Verdins (2007) 16 VR 269; Gioffre v R [2020] VSCA 177; Zarghami v R [2020] VSCA 74; Tran v R [2018] VSCA 107; and DPP v White [2020] VCC 8
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Pickering | Solicitor for the Director of Public Prosecutions |
| For the Offender (Karazisis) For the Offender (Dei Wal) | Ms E Clarke (Plea) Mr C Morgan (Plea) | Fayman Lawyers Stary Norton Halphen |
HIS HONOUR:
Introduction
1Stephen Karazisis and Shannin Dei Wal, you have pleaded guilty to an indictment containing a total of eight charges, together with a number of related summary offences.
2Stephen Karazisis, you have pleaded guilty to trafficking in a drug of dependence, methylamphetamine, between 3 April 2020 and 23 June 2020 (Charge 1 on the Indictment), possession of an unregistered general category handgun on 9 June 2020 (Charge 2 on the Indictment), disposal of a general category handgun on 9 June 2020 (Charge 3 on the Indictment), possession of a drug of dependence, Diazepam, on 23 June 2020 (Charge 4 on the Indictment), and handling stolen goods on 23 June (Charge 5 on the Indictment).
3You have also pleaded guilty to seven related summary offences, possess cartridge ammunition on 23 June 2020 (related summary offence Charge 6), dealing with property suspected of being the proceeds of crime on 23 June 2020 (related summary offence Charge 10), possess prohibited weapon, namely a flick knife on 23 June 2020 (related summary offence Charge 11), commit indictable offence on bail on 23 June 2020 (related summary offence Charge 12), breach conduct condition of bail on the same date (related summary offence Charge 13), failing to comply with direction from police for computer access on the same date (related summary offence Charge 14), and driving whilst disqualified on 22 May 2020, 27 May 2020, 9 June 2020 and 19 June 2020 (related summary offence Charge 45).
4Shannin Dei Wal, you have pleaded guilty to one charge of trafficking in a drug of dependence, methylamphetamine, between 3 April 2020 and 22 May 2020 (Charge 6 on the Indictment), possession of an unregistered general category handgun on 21 May 2020 (Charge 7 on the Indictment), and disposal of a general category handgun on 21 May 2020 (Charge 8 on the Indictment).
5You have also pleaded guilty to two related summary offences, namely possess prohibited weapon, being a flick knife, on 23 June 2020 (related summary offence Charge 7), and driving whilst disqualified on 3 April 2020, 15 April 2020, 23 April 2020, and 22 May 2020 (related summary offence Charge 8).
6You both also admitted your criminal histories.
7The maximum penalties for these crimes, to which I must have regard in sentencing you, are as follows:
· trafficking in a drug of dependence – 15 years’ imprisonment;
· possession of unregistered handgun – 600 penalty units or 7 years’ imprisonment;
· disposal of general category handgun – 600 penalty units or 5 years’ imprisonment;
· possess drug of dependence – 400 penalty units or 5 years’ imprisonment, or 30 penalty units or 12 months’ imprisonment as applicable;
· handling stolen goods – 15 years’ imprisonment;
· possess cartridge ammunition – 40 penalty units;
· deal with property suspected of being proceeds of crime – 2 years’ imprisonment;
· possess prohibited weapon – 240 penalty units or 2 years’ imprisonment;
· commit indictable offence whilst on bail – 30 penalty units or 3 months’ imprisonment;
· contravene conduct condition of bail – 30 penalty units or 3 months’ imprisonment;
· fail to comply with direction for computer access – 2 years’ imprisonment;
· drive whilst disqualified – 240 penalty units or 2 years’ imprisonment.
Circumstances of Offending
8The circumstances of your offending were set out in the summary of prosecution opening dated 28 February 2021, Exhibit A, at your initial plea hearing on 26 March 2021.
9You, Mr Karazisis, were 29 years of age at time of your offending. Pursuant to an earlier grant of bail in relation to charges which included cultivate and traffic a commercial quantity of cannabis as well as various dishonesty offences, you were required to be residing with your parents in Bentleigh East. However, at the time of the offending you resided at a property in Bay Street, Brighton. You, Mr Dei Wal, were 33 and 34 years of age at the time of the offending, and you resided at a property in Oakleigh South.
10Two other co‑offenders, whom the prosecution allege were involved in your offending to a degree, have not yet been dealt with.
11Both of you engaged in trafficking methylamphetamine to covert police operatives over a period of time. You, Mr Karazisis, engaged in this conduct between 3 April and 23 June 2020, trafficking a total amount of 157.5 grams of methylamphetamine in that period – Charge 1 on the indictment. You, Mr Dei Wal, engaged in this conduct between 3 April and 22 May 2020, trafficking a total amount of methylamphetamine of 87.8 grams – Charge 6 on the indictment.
12In terms of your involvement in the offending in particular, Mr Dei Wal, covert operatives first made contact with you on 27 March 2020 via a social media platform, and you agreed with the operative to meet the following week for the sale of 14 grams of methylamphetamine to the operative. After that first contact you, Mr Dei Wal, asked the operative to contact you using an encrypted application.
13On 3 April 2020, you met up with Mr Karazisis in a carpark in East Bentleigh. Together you then drove in Mr Karazisis’ silver BMW to the Links Shopping Centre, where you met with two covert operatives in the carpark and sold the 14 grams of methylamphetamine to them for $1,800. As set out in the summary of prosecution opening, in the days that followed you had ongoing contact with the covert operative, on one occasion discussing an updated price for methylamphetamine before agreeing on a price of $3,800 for 28 grams or one ounce.
14On 15 April 2020, you, Mr Dei Wal, rode your motorbike to again meet up with Mr Karazisis who was again driving his BMW, with his partner, one of your co‑offenders, in the passenger seat. In an underground carpark at the Links Shopping Centre you met with the undercover operative in his car. You showed the operative 27 grams of methylamphetamine and then called Mr Karazisis about obtaining the other gram. When the covert operative asked you whether you did anything else, you made a hand gesture of a gun, saying that you could source it through a gang. You then gave the operative 28 grams of methylamphetamine in two bags and you were paid $4,000 before you and Mr Karazisis left the carpark in your vehicles.
15Contact continued between you and the covert operative. On 16 April 2020, you were contacted by the operative with regards to the inconsistencies in weight of the previous sale. A few days later on 22 April 2020, you told the operative that you wanted to maintain the business relationship and make up for the inconsistencies in supplies, indicating that you were willing to supply further methylamphetamine.
16On 23 April 2020, you advised the covert operative that the price for one ounce of methylamphetamine was now $4,300, as your supplier was paying extra for it. You agreed to meet the operative that day. You met in Oakleigh South and sold one ounce of methylamphetamine to the operative for $4,100.
17Over the days and weeks that followed, you indicated to the operative that you could sell further amphetamine with increasing prices per ounce of between $4,500 and $5,800.
18On 8 May 2020, you messaged the covert operative and arranged to be picked up near your home. There was a discussion in a car about you sourcing a firearm, and you contacted an associated called “Steve” who said that he had a sawn-off .22 for $1,000. You told the covert operative that “Steve” had been present for previous transactions at the carparks with you and the covert operatives. Later that day, an arrangement was made to meet with “Steve”. A blue BMW met the covert operative’s car and Mr Karazisis was identified as the driver of the vehicle. You, Mr Dei Wal, then obtained half an ounce of methylamphetamine from the BMW and you were paid $2,900 for this by the operative.
19On 14 May 2020, the covert operative arranged to meet Mr Karazisis through you, Mr Dei Wal, the operative agreeing to buy a quarter of an ounce for $2,500.
20On 19 May 2020, you, Mr Dei Wal, forwarded a photograph of a sawn-off .22 rifle to the covert operative, indicating that the price was $1,200.
21The following day, you and the covert operative discussed the sale of methylamphetamine and the sawn-off rifle. By now the price per ounce for methylamphetamine was $8,000.
22The following day, 21 May 2020, you arranged to meet with the covert operative at an address in Clayton South. There, you handed the firearm to the operative for $1,200, confirming that it was in good condition and that your associate had fired it in a park in front of you – Charges 7 and 8 on the indictment. That rifle was later examined by police ballistic experts and found to be a working .22 Pieper single shot bolt action long arm rifle which had the barrel sawn off. You indicated to the operative that you had another 13 firearms available for sale, including a handgun for $6,500.
23In terms of your involvement in the offending, Mr Karazisis, I have already mentioned you in relation to aspects of your involvement in this matter, when outlining Mr Dei Wal’s offending.
24The day after Mr Dei Wal sold the firearm to the covert operative for $1,200 on 21 May 2020, Mr Dei Wal and the covert operative discussed meeting you for the purpose of purchasing more methylamphetamine and the possible sale of a handgun. On that day, 22 May 2020, you drove to the Coles Supermarket in Bentleigh in your BMW, where you sold seven grams of methylamphetamine to the covert operative for $3,000. You also supplied your contact details on the Wickr app so that the operative could continue to purchase drugs directly from you in the future.
25Your trafficking activities with regards to the covert operative continued up until the date of your arrest, 23 June 2020.
26On 27 May 2020, you sold the covert operative half an ounce of methylamphetamine for an agreed price of $4,500, referring to it as “green tea”. You informed the operative that the price was high for the green tea because the quality was good and it was hard to get.
27Over the following days, police covertly recorded conversations between you, Mr Karazisis, Mr Dei Wal and one of your co‑offenders regarding the quality and price of drugs. On 29 May 2020, you, Mr Karazisis, directed one of your co‑offenders to prepare 6.5 grams for sale.
28On 3 June 2020, you sold the covert operative half an ounce of methylamphetamine for $4,250, following your arranged meeting in Acland Street, St Kilda, after a discussion with the operative about potential purchases of firearms from you.
29On 5 June 2020, the covert operative received a message from you, Mr Karazisis, with a list of firearms for sale, which included a .410 shotgun for $5,000, a handgun for $15,000, a pump action shotgun for $22,000, a gold plated .22 rifle for $5,000, together with silencers and ammunition. Over the following days, covert recordings revealed you, Mr Karazisis, discussing the sale of “tea” to one of your co‑offenders, together with the supply of a firearm. You, Mr Karazisis, then met with Mr Dei Wal and discussed sourcing further firearms for the covert operatives. On 7 June 2020, the covert operative received a message from you, Mr Karazisis, about a sawn-off shotgun being available and was provided with a photograph of the weapon. The agreed cost of the gun was $3,200, with you, Mr Karazisis, adding that there was a .38 calibre revolver available for $18,000.
30Two days later on 9 June 2020, you, Mr Karazisis, met up with the covert operative at the IGA Supermarket in Brighton and sold the operative the sawn-off shotgun for $3,200 – Charges 2 and 3 on the indictment. Police ballistics experts later inspected this firearm, which was identified as a working .410 bore Liege double-barrel shotgun with sawn-off barrels and stock. You discussed with the operative the possible sale of a .38 revolver and the gold plated .22 rifle, with you also advising that the green tea was now available.
31A few days later on 12 June 2020, the covert operative contacted you, Mr Karazisis, with regards to the purchase of more methylamphetamine. There was then also discussion regarding the availability of the handgun previously mentioned by you. The following day, 13 June 2020, covert operatives met with you, Mr Karazisis, at an address in Malvern after being told the price for half an ounce of methylamphetamine was now $4,600 due to limited supply. You, Mr Karazisis, attended with one of your co‑offenders in her vehicle. You took one gram from the ½ ounce and smoked it in a pipe yourself, before passing the rest to the covert operatives, indicating that the price was $4,450 for the remaining 13 grams, which the operatives paid.
32Between 18 and 19 June 2020, you, Mr Karazisis, discussed with the covert operative the supply of a sawn-off shotgun together with the ammunition and a gold plated .22 rifle for $10,000. The operative agreed to purchase a further ½ ounce of methylamphetamine for $4,500.
33Later, on 19 June 2020, the covert operatives met with you, Mr Karazisis, at a Shell Service Station in Clayton South, where one of the operatives purchased ½ ounce of methylamphetamine from you for $4,500. On that day and the days following, you, Mr Karazisis, had discussions with the covert operative with regards to the sale of further firearms and the further sale of ½ ounce of methylamphetamine for $3,650.
34On 23 June 2020, police executed search warrants at the property in Bay Street, Brighton where you, Mr Karazisis, in contravention of your bail conditions, were then residing with your co‑offender, and you were both arrested. As I earlier stated, at this time, you had been on bail to reside at your parents’ address in Bentleigh East and not to associate with your partner and co‑offender (related summary offences 12 and 13). Police located a round of .22 ammunition in your pocked (related summary offence 6). Inside a rental car which had been rented by you, Mr Karazisis, police found a black handled flick knife (related summary offence 11). Police also conducted a search at your parents’ property. As a consequence of the searches, police located various stolen property in your possession which is listed in Schedule A of the summary of prosecution opening. Those items include a bicycle, various forms of identification of other individuals, various bank cards, a computer, a designer handbag, and an amount of cash – Charge 5 on the indictment. Police also located other property which they reasonably suspected to be the proceeds of crime, which are described in Schedule B to the summary of prosecution opening. Those items included various phones, computers, car keys, and a significant quantity of colognes – related summary offence 10. Police also located a vial of Diazepam in the lounge room television cabinet of the Brighton address – Charge 4 on the indictment.
35Also, on 23 June 2020, police executed a search warrant at your home, Mr Dei Wal. You were arrested at this time. In the search of the premises, police located a black handled flick knife – related summary offence 7.
36In your interview, Mr Karazisis, you made a “no comment” response to the allegations. You were directed by police to provide the password for your mobile phone but failed to do so – related summary offence 14.
37You, Mr Dei Wal, were interviewed and made a partial “no comment” record of interview, admitting that you had sold drugs but made little money out of it and denied that you had access to other firearms as you had claimed to the covert operatives.
38During the period in which you, Mr Karazisis, had been trafficking drugs, on various occasions you had driven to meet with the co‑offenders and covert operatives. At this time, you were disqualified from driving – related summary offence 45.
39During the period in which you, Mr Dei Wal, had been trafficking drugs, you had driven to meet with the co‑offenders and covert operatives on a number of occasions. At that time, you were disqualified from driving – related summary offence 8.
40You have both been in custody since your arrest on 23 June 2020, a period of 315 days pre‑sentence detention up to but not including today.
Objective Gravity of the Offending, and Your Respective Levels of Culpability
41In relation to both of you, I regard the essential gravamen of your criminality to be a relatively sustained and intense period of trafficking quantities of methylamphetamine to covert police operatives, during which time you each separately discussed the sale of firearms, and on one occasion you each sold a firearm to the operative.
42Your trafficking conduct in my view represents a serious example of trafficking simpliciter. In relation to both of you, the trafficking was more serious than street level trafficking. You both utilised various applications to communicate with the operatives. You both engaged in protracted communications with the operatives with regards to the sale price, which increased as the trafficking continued. The quantities sold during each transaction, and the prices paid, were not insignificant. It appears also from the subsequent expert analysis that the quality of the methylamphetamine trafficked was high. Tellingly, on 22 April 2020, you, Mr Dei Wal, in communications with the covert operative, referred to wanting to maintain the “business relationship”. In my view, this is an apt description of both of your trafficking offending. In that regard I agree with the prosecution’s submission that your trafficking offending had a distinct commercial or business aspect to it. The prosecution submitted in relation to the gravity of your offending that it represented mid to high level examples of trafficking simpliciter. In my view your offending represents at least mid-level offending for trafficking simpliciter, for the reasons I have outlined.
43Likewise, in relation to the possession and disposal of handgun charges applicable to each of you (Charges 2 and 3 with regards to you, Mr Karazisis and Charges 7 and 8 with regards to you, Mr Dei Wal), I regard these as concerning examples of such offences. The gravity of these crimes of course is reflected in the respective maximum penalties – 7 years’ imprisonment for the possession charge and 5 years’ imprisonment for the disposal charge respectively. In my view the seriousness of your offending with regards to these charges is accentuated by virtue of the fact that this offending occurred within the context of your ongoing trafficking activities with the covert operatives, which as I have described had a commercial aspect. As both of your counsel pointed put in submissions, neither of you were charged as ‘prohibited persons’, which would otherwise have been an aggravating factor, and there is no suggestion that the firearms were used as such. However, as indicated in your plea hearings, I regard your offending with regards to the firearms to be highly concerning. As far as each of you were concerned, you must have believed that you were involved in the movement of unregistered weapons, in working order, for financial gain, within the drug trafficking community. That each of you would willingly engage in such conduct within this context is in my view highly concerning. I accept that you each fall to be sentenced in relation to discrete transactions, you, Mr Karazisis on 9 June 2020 and you, Mr Dei Wal, on 21 May 2020. Nevertheless, both of you in communications with the covert operatives demonstrated significant enthusiasm for further such transactions. You, Mr Dei Wal, notwithstanding your indication in the record of interview that you were essentially just making bravado-type statements to facilitate the sale of the one gun, informed the operative that you had another thirteen firearms available for sale, including a handgun. You, Mr Karazisis, provided the covert operative on 5 June 2020 with a detailed list of firearms for sale, including a pump action shotgun for $22,000. Later you informed the operative that you also had a .38 calibre revolver available for $18,000. Whilst you clearly fall to be sentenced only in relation to the discrete transactions which form the basis of the charges on the indictment, your enthusiastic communications with the operative and the context within which these firearms were sold, that being an ongoing trafficking business relationship, in my view accentuates the gravity of this particular offending.
44In relation to each of you, you have pleaded guilty to other offences arising out of the circumstances of your arrest, including items found in your possession. In my view, those charges in particular represent separate criminality. In relation to you, Mr Karazisis, you were found in possession of a significant quantity of stolen property including bank cards and other identifying documentation for a large number of individuals. The maximum penalty in relation to your handling of this stolen property, 15 years’ imprisonment, reflects the gravity of this type of conduct. Likewise, your possession of a significant quantity of property reasonably suspected to be proceeds of crime is concerning. The gravity of your conduct in this regard is also reflected in the maximum penalty for this offence, 7 years’ imprisonment.
45I now turn to the issue of your respective levels of culpability or responsibility for the offending, in particular the drug trafficking and weapons offending.
46Mr Karazisis, your counsel submitted in relation to your respective levels of involvement that you were essentially “colleagues”, and it was submitted that there was no evidence of any hierarchy between you. In contrast, your counsel, Mr Dei Wal, submitted that your involvement was lower than that of Mr Karazisis. Having considered this matter, there is no basis in my view to distinguish between you with respect to your hierarchy within this criminal endeavour. You were both connected to each other, and both directly communicated with the covert operatives as required. You both were directly involved in the transactions with regards to the methylamphetamine, and on separate occasions you each disposed of firearms to the operatives. With regards to you, Mr Dei Wal, the initial drug transaction involved you. The first reference to any notion of firearms came from you, Mr Dei Wal, on 15 April 2020 when you met with the covert operative and were asked if you did anything else. I agree with the prosecution that, during the offending period for which you fall to be sentenced, you were “right in the middle of this”.
47However, clearly in relation to your level of responsibility, Mr Dei Wal, the period within which you trafficked methylamphetamines was shorter by approximately one month in comparison with Mr Karazisis. Putting it another way, you, Mr Dei Wal, engaged in trafficking for a period of some seven weeks, whereas you, Mr Karazisis, trafficked for almost 12 weeks. Within that extended period, Mr Karazisis, the total amount of methylamphetamine trafficked by you was almost double that of Mr Dei Wal. Indeed, the respective pecuniary penalty orders in this matter are reflective both of the objective gravity of each of your trafficking activities, and the distinction between you. The Pecuniary Penalty Order in relation to you, Mr Karazisis, is in the sum of $23,900, whereas the Pecuniary Penalty Order in relation to you, Mr Dei Wal, is in the sum of $14,000. Clearly, in this regard your level of criminality, Mr Karazisis, exceeds that of Mr Dei Wal. Furthermore, at the time of your offending Mr Karazisis, you were on bail for trafficking and cultivating a commercial quantity of cannabis. That you would engage in such serious criminality whilst on bail for serious drug related allegations in my view further accentuates your culpability.
48At your plea hearings, both of you, through your counsel, submitted that your offending was essentially borne out of problems associated with drug addiction, coupled with financial pressures. Indeed on one occasion of trafficking on 13 June 2020 you, Mr Karazisis, smoked some of the methylamphetamine that was to be sold to the operative. Whilst these matters may have some bearing in relation to the context within which you offended, clearly they do not reduce your moral culpability respectively for your serious offending.
Stephen Karazisis – Personal Circumstances and Applicable Sentencing Factors
49You are currently 30 years of age. You were born in Adelaide, the second of three children to parents of Greek heritage, who are still married. Though you have reported to psychologist, Patrick Newton (exhibit 2),[1] that you now enjoy a positive relationship with your family, you have described your early years as having been abusive. Your father, who worked as a public servant, and your mother who worked in insurance, apparently worked long hours, with a focus on providing a secure material foundation for the family. You have reported that your parents’ relationship was highly conflictual to the point of physical violence, and that your father had been a strict disciplinarian who utilised harsh corporal punishment throughout your childhood. You have reported that there had been little affection in the family home, and that you had always felt like the black sheep compared to your successful brothers. In terms of your education, you have reported being a generally average student with some behavioural issues which escalated following your move to St Bede’s Mentone for your VCE years of schooling, where you were suspended and ultimately expelled shortly before your Year 12 exams. Following your schooling, you briefly attending a TAFE college where you studied information technology but left prematurely. Since then, you have reported a patchy work history, mainly in the area of retail.
[1]Patrick Newton, Confidential Psychological Assessment (15 March 2021), 3
50At the age of 20 you were introduced to drug use by your then girlfriend in the context of a turbulent 12-month relationship. You have subsequently engaged in a number of intense short-term liaisons with other drug users, and all of these relationships have apparently been unstable and tumultuous. Indeed, you have reported to Mr Newton a lengthy period of involvement with illicit drugs, commencing with methamphetamine use from the age of 20. Your use of this drug escalated rapidly from initial weekend use to daily within a matter of months. You have described a physical dependence on this substance and noted that every aspect of your life has been subsumed into your attempts to maintain your addiction. This has impacted upon your ability to sustain relationships, your ability to maintain work, and your connections to your family. You have reported that as your use continued you became embroiled in criminal offending and increasingly immersed into criminal and substance-using subcultures. From a review of your criminal history, you have been dealt with for a large number of drug-related charges between 2013 and 2018, including convictions for possession, trafficking and use of various illicit substances. You also have various prior convictions for dishonesty offending. Concerningly, in 2016, you were convicted of explosives offences and in 2017 you were convicted of possession of cartridge ammunition. You have mainly received sentences which have not resulted in your removal from the community, save for a period of remand in 2019.
51In 2014 you experienced an episode of hypoxia after inhaling contaminated methamphetamine, which required your admission to hospital and extensive rehabilitation. In that regard, I have read and considered the neuropsychological assessment report of Dougall Phillips[2] dated 5 February 2017, Exhibit 3 at your plea hearing, which dealt with the impact on your functioning as a result of this injury. Mr Phillips described your difficulties with attention, memory and executive function, especially impulsivity, due likely to two acquired brain injuries and one neurodevelopmental disorder, namely the ongoing impact of prior bouts of hypoxia, the impact from prior amphetamine use and adult attention deficit hyperactivity disorder. According to Mr Phillips your cognitive profile as at 2017 suggests that you are likely to struggle with consequential thinking due to the fact that you tend to act on impulse[3]. According to Mr Phillips your risk-taking and antisocial behaviours primarily stem from a disorder of impulse control. As a result of your previous brain injury, your brain is likely more vulnerable to the adverse effects associated with psychoactive substances. It is in fact possible that you have used methamphetamine in part for relief from your pre-existing ADHD symptoms.
[2] Dougal Phillips, Confidential Neuropsychological Assessment (5 February 2017)
[3] Dougal Phillips, Confidential Neuropsychological Assessment (5 February 2017), 8
52According to Mr Newton, notwithstanding the episode of hypoxia in 2014, you have continued to use methamphetamine with only brief periods of respite before your arrest on these current matters, this being a testament to the severity of your addiction.[4]
[4]Patrick Newton, Confidential Psychological Assessment (15 March 2021), paragraph [22]
53You also reported to Mr Newton suffering a significant injury to your lumbar spine in 2019, when you ruptured your L4 and L5 vertebrae, as well as doing other damage. You have reported that since this injury you have experienced chronic back pain, as well as severe limitations to your mobility, leaving you unable to walk without a walking stick. You have apparently been quoted a fee of some $17,000 by a neurosurgeon in relation to spinal surgery which may assist in your recovery. You reported to Mr Newton that your desire to obtain funds for this surgery had added to the financial motivation underpinning your offending.[5]
In relation to your offending, you reported to Mr Newton that this had occurred in the context of a relapse to heavy drug use following a period of relative stability with your partner, Ms Young, from 2018, and then your arrest in April 2019 on other matters, for which you were placed on remand for two months, before eventually being bailed. This period of remand led to the loss of a job, difficulties in your relationship, and a significant deterioration in your mental state. Your back injury followed soon after, and it was in this context that you relapsed into heavy use of methamphetamine and GHB, together with resumption of heavy gambling. According to you, it was the combination of extensive drug use and gambling which exacerbated your already parlous financial state, and all of these circumstances reportedly motivated your involvement in this offending.
[5]Patrick Newton, Confidential Psychological Assessment (15 March 2021), paragraph [32]
54As conceded by your counsel and as noted by psychologist, Mr Newton, you do not appear to have been labouring under the effects of any mental disorder at the time of your offending, beyond your substance addiction. Indeed, the personal difficulties to which I have referred, whilst relevant to providing a context for your offending, does not reduce your moral culpability pursuant to the well-known mental impairment principles.[6]
[6]Patrick Newton, Confidential Psychological Assessment (15 March 2021), paragraph [52]
55Pursuant to s5(2)(f) of the Sentencing Act 1991, I have taken into consideration your previous character, the details of which I have described. Specifically, in relation to your prior criminal history, previous interventions in the form of community correction orders for drug-related offending, including your conviction for trafficking in methylamphetamine on 30 June 2015, have not deterred you from re-offending. In any sentence I impose, there is therefore clearly a need for that sentence to give effect to the sentencing purpose of specific deterrence.
56I turn now to the issue of your plea of guilty, s.5(2)(e) of the Sentencing Act 1991 and remorse.
57Having been arrested in relation to this matter on 23 June 2020, this matter resolved to a plea of guilty at the committal mention stage on 2 December 2020, where the matter proceeded by way of the straight hand-up brief procedure. I am satisfied therefore that your plea of guilty was indicated at an early stage in the proceedings, and your plea of guilty is therefore of significant utilitarian benefit. By virtue of your plea of guilty, witnesses have been spared cross-examination and the costs and delays associated with contested proceedings have been avoided. Particularly in the context of the COVID-19 pandemic and the associated unparalleled impacts on the administration of justice in Victoria, your plea of guilty must attract a significant discount for utilitarian reasons. I am satisfied in the circumstances that your plea of guilty reflects an acceptance of wrongdoing and a willingness to facilitate the course of justice.
58Your counsel submitted in written submissions that your plea of guilty is also indicative of remorse for your conduct and that such remorse was further evidenced through your remarks to Mr Newton during your psychological assessment. In contrast, Mr Pickering, who appeared for the prosecution, submitted that there was very little in the plea material tendered on your behalf which would reflect remorse on your part. Having considered the psychological report from Mr Newton, together with the character references tendered on your behalf, I accept that you have a developing degree of insight in relation to your own drug addiction issues, which, as your counsel describes, could be seen as a precursor to broader remorse. You informed Mr Newton that looking back on your conduct, you have been “really stupid”[7]. You were able to outline in relation to your own drug use the most important triggers for relapse, and according to Mr Newton, you are able to demonstrate an insight into your addiction, and you seemed genuine in your expression of desire for change.[8] Save for a reference to your feelings of guilt due to the impact of your offending on your family and your partner, the character references are silent as to the broader issue of remorse for your offending. In all the circumstances, I am prepared to make a modest mitigatory allowance only on the issue of remorse, for the reasons I have described.
[7] Patrick Newton, Confidential Psychological Assessment (15 March 2021), 9
[8]Ibid paragraphs [48] and [49]
59I am satisfied in relation to your time in custody to date that you have experienced real hardship, warranting a further mitigatory allowance on sentencing. You have been on remand since your arrest in June 2020. Due largely, it seems, to your physical fragility due to your back injury, you have reported to Mr Newton being subject to significant harassment and bullying at the hands of other prisoners[9]. This harassment has consisted of physical assault, intimidation, damage to your property, including your walking stick, and near constant denigration. You have reported that you have felt powerless to take any action to prevent the harassment due to your physical fragility and reluctance to inform prison authorities for fear of inspiring even more violent treatment in response. You have apparently been on the verge of suicide on a number of occasions. Mr Newton noted that you were on “suicide watch” each time that he saw you for the purposes of his psychological assessment. Mr Newton noted that your mental state was characterised by noteworthy emotional distress and anxiety, the main cause being related to the circumstances of your incarceration. According to Mr Newton:
“… while most prisoners are upset to be separated from their partners and concerned about the consequences which they could face as a result of their charges, Mr Karazisis’ level of distress has reached the proportion where he has become intensely suicidal and has required close observation to prevent impulsive acts of self-harm.
…
Mr Karazisis’ symptoms are sufficiently severe to warrant the diagnosis of an adjustment disorder with mixed anxiety and depressed mood. There is some risk that his mood …
… The anxiety and depression described above have developed after his offending … .”[10]
[9] Patrick Newton, Confidential Psychological Assessment (15 March 2021), 9
[10]Ibid Paragraphs [40]ꟷ[41] and [44]
60The prosecution in this case conceded that due to both your physical and mental health impairments, both the fifth and sixth Verdins’[11] principles have applicability in your case. I accept in all the circumstances that your conditions could mean that a sentence of imprisonment would weigh more heavily on you than it would on a person in normal health, and there is a serious risk of imprisonment having a significant adverse effect on your mental health, such that a further mitigatory allowance on sentencing is warranted.
[11] R v Verdins (2007) 16 VR 269
61I am also satisfied that particularly for you the impacts of the COVID-19 pandemic on your circumstances of imprisonment warrant further mitigatory allowances. You were remanded in custody amidst the global pandemic and the lockdowns in Victoria. During your time in custody, due to the COVID-19 pandemic you have been subject to significant restrictions on your movements within the prison setting, face-to-face visits were suspended until early this year, and you have had reduced access to programs, treatment, education, exercise and employment. You also have had a lack of access to effective treatment in relation to your back injury, and I note in that regard you have until recently been unable to access physiotherapy services. All of this of course has occurred in the context of your difficulties in custody due to the bullying and harassment that I have described, with its attendant consequences on your physical and mental health. I note in that regard that for a period of time you were transferred to the St Paul’s Mental Health Unit at Port Phillip Prison, where you were placed in an observation cell, with no access to reading material, programs, employment or personal items for a period.
62Notwithstanding these difficulties, I accept that you have used your time in custody as productively as you can in the circumstances. In that regard, I note your undertaking of various educational certificates and programs as evidenced by the Prisoner Education Summary Report dated 8 December 2020, Exhibit 5 at your plea hearing. Furthermore and significantly, you have undertaken counselling in relation to your addiction issues through Caraniche whilst in prison, engaging in individual counselling from 3 August 2020 until 16 November 2020, attending a total of six sessions in relation to factors related to your substance abuse, as confirmed in the letter dated 19 November 2020, Exhibit 8 at your plea hearing.
63I also note the urine screen from 19 August 2020 confirming your abstinence from illicit substances at that time.
64In terms of your rehabilitative prospects, according to psychologist, Patrick Newton, given the multiplicity of issues faced by you, Mr Newton remains guarded about your prognosis. However, it is clear from Mr Newton’s report[12] that you have repeatedly expressed your desire to participate in treatment in relation to your drug and other issues, and you have repeatedly expressed a degree of insight into the importance of finally engaging with any opportunity which might now be given to you to address your various issues. You have now undergone a significant period of abstinence from drugs whilst in custody, coupled with participation in treatment. It is clear from the various character references tendered on your behalf that you maintain the ongoing love and support of your family and others. You have accepted responsibility for your offending. You have what could be described as a developing level of insight into your drug use, which will hopefully lead to greater understanding on your part as to the significant adverse effects of your offending on others. You have expressed a desire following your ultimate release from prison to reside with your parents. There is, it seems, the prospect of employment, as referred to by Lana Gadzhis in her reference dated 26 March 2021 (exhibit 9), with her father. You have expressed a desire to consolidate the gains that you have made whilst in custody and also to obtain appropriate treatment for your debilitating back injury and then engage in meaningful employment. Whilst it must be said that your rehabilitative prospects are guarded, I do maintain a degree of hope for your ultimate rehabilitation given all of these factors.
[12]Patrick Newton, Confidential Psychological Assessment (15 March 2021), Paragraph [55]
Shannin Dei Wal – Personal Circumstances and Applicable Sentencing Factors
65You are now 35 years of age. You have lived in Australia since emigrating with your family as a six year old in 1993 from Jordan. You have four siblings. Your parents remain together. You apparently assimilated well into Australia. You have enjoyed generally positive relations with your family, who remain supportive of you. In that regard, I note that two of your siblings were present at your initial plea hearing on 26 March 2021.
66You apparently progressed well through your schooling until the end of Year 10. In Year 11, you moved to a different school and formed a different peer network which was less supportive of academic achievement. This period of change coincided with a downturn in your behaviour generally. You left school by the end of Year 12. More concerningly, however, this period of change in terms of your education also coincided with your experimentation as a teenager with illicit drugs. You first experimented with cannabis at the age of 17 and by the age of 18 you were a regular user of this substance.
67After you finished school and notwithstanding your cannabis use, you commenced a carpentry apprenticeship but unfortunately did not complete it. Instead you obtained employment in factories for a number of years.
68Your difficulties with regards to cannabis are reflected in your criminal history. In March 2013 you received a community-based order in relation to offending which included possession and trafficking cannabis. You subsequently failed to comply with that community-based order. In the years that followed, your criminal history reveals ongoing issues with regards to cannabis.
69At the age of 25, you first tried Ice, initially believing that this substance would assist in alertness and energy levels at work. You quickly became a heavy user, predictably leading to unreliability at work and your loss of employment.
70This escalation in your problematic drug use again is reflected in your criminal history. In 2013 at the age of 27, you were dealt with for possession of both cannabis and amphetamine and in October 2013 you received a partially suspended sentence of imprisonment for offending which included trafficking in tetrahydrocannabinol.
71Your criminal history reveals a break in offending for some three or more years between late 2013 and early 2017. According to your counsel this period of relative abstinence and a lack of offending corresponds with you being in a committed relationship with a woman who was apparently a good influence on you. She ultimately left the relationship amidst your struggles to remain completely abstinent and sadly your behaviour deteriorated after that relationship in terms of drug use and ultimately offending behaviour. Again, your criminal history reflects these difficulties in your life. In 2017 you were dealt with for possession of various illicit substances including Ice; possession of a controlled weapon being a Swiss Army knife; dishonesty offending including burglary; and ultimately on 16 January 2017 you received a total effective sentence of 2 years and 3 months with a non‑parole period of 15 months.
72You were released in 2018 and I was informed that you completed parole during which you completed a pre‑apprenticeship in electrical engineering, and then obtained some fencing work till early 2020, when you lost your employment in the context of the COVID pandemic. I was informed that you relapsed into drug use and the offending for which you now fall to be sentenced.
73Your criminal history is concerning and relevant. In particular, your inability to refrain from serious criminality notwithstanding your significant sentence of imprisonment in 2017, means that any sentence I impose must appropriately reflect the sentencing purpose of specific deterrence.
74Pursuant to s.5(2)(f) of the Sentencing Act 1991, I have taken into consideration your previous character, the details of which I have described. In relation to other mitigatory factors relevant to sentencing, I note that no documentary material was tendered at your plea hearing. There is, therefore, no evidentiary basis upon which any further mitigation of penalty would be warranted due to any physical or mental health issues, or any hardships encountered or material relevant to your rehabilitative prospects. In plea submissions before me, your counsel specifically disavowed any reliance on the Verdins[13] mental impairment principles.
[13] R v Verdins (2007) 16 VR 269
75I turn now to the issue of your plea of guilty, s.5(2)(e) of the Sentencing Act 1991. Having been arrested on 23 June 2020, your counsel informed the Court that you indicated a plea of guilty on 5 November 2020, sometime prior to your summary jurisdiction application on 17 December 2020. When that application was ultimately refused on 12 January 2021, your matter was listed along with the plea hearing of Mr Karazisis in March of this year. In all the circumstances, I am satisfied that your plea of guilty was indicated at a relatively early stage in the proceedings, noting your right to seek a determination with regards to the appropriate jurisdiction, and I am satisfied therefore that your plea of guilty is of significant utilitarian benefit. By virtue of your plea of guilty, witnesses have been spared cross-examination and the costs and delays associated with contested proceedings have been avoided. Particularly in the context of the COVID‑19 pandemic and the associated unparalleled impacts on the administration of justice in Victoria, your plea of guilty must attract a significant discount for utilitarian reasons. I am satisfied in the circumstances that your plea of guilty reflects an acceptance of the wrongdoing and a willingness to facilitate the course of justice. Whilst a plea of guilty in and of itself can be indicative of remorse, in the absence of any further material in this regard, I am unable to make a further mitigatory allowance due to remorse. Indeed, your counsel did not make any submissions in this regard.
76As was the case with regards to Mr Karazisis, I am satisfied that the impacts of the COVID‑19 pandemic on your circumstances of imprisonment warrant further mitigatory allowance. You were remanded in custody amidst the global pandemic and the lockdowns in Victoria. Again, during your time in custody due to the COVID‑19 pandemic, you have been subject to significant restrictions on your movements within the prison settings, face-to-face visits were suspended until early this year, and you have had reduced access to programs, treatment, education, exercise and employment. As is the case with regards to Mr Karazisis, the impacts of COVID-19 on the circumstances of your imprisonment to date are significant and cannot be ignored in the sentencing synthesis. A sentencing discount is warranted.
77At your further plea hearing on 31 March 2021, you informed me directly that you have been in custody at the MRC for the entirety of your remand to date. You have managed to undertake a number of courses, and for the last three months you have worked as a unit billet, and prior to that you worked as a kitchen billet. You informed me and I accept that you have undertaken up to five random urine screens, which have all been free of illicit substances. You informed me that your time in custody had been difficult due to the inability to have meaningful contact with your family. Further, you have applied to do drug and alcohol courses but you have been unable to do so due to the COVID restrictions. In all the circumstances, I do accept that you have used your time in custody productively, notwithstanding the difficulties to which I have referred.
78In relation to your rehabilitative prospects, your counsel realistically conceded that your prospects are guarded in the circumstances. However, I accept that in the past you have demonstrated an ability to undertake training and vocational courses and obtain employment. Significantly, and unlike many others in your situation, you retain the love and support of your family, who have been involved in your plea hearing. At your plea hearing, you were able to directly communicate your plans to me. You indicated that after your release you intend to live with your family and utilise their support. You frankly admitted that you need help to manage your addiction, and you expressed a hope and desire to emulate your siblings who all work in the labour and construction industry. In all the circumstances your prospects of rehabilitation must be viewed as guarded. However, for the reasons I have outlined, I retain some degree of hope that upon your release and with appropriate specialist interventions you have some prospects of becoming a productive member of the community.
79Turning now to the sentencing factors applicable to both of you, when formulating appropriate sentences in your case, particularly with regards to the trafficking and weapons offending, I have had regard to current sentencing practices, s.5(2)(b) of the Sentencing Act 1991 as one of the relevant factors. In that regard, I have read and considered the decisions provided by the prosecution which were said to be representative of current sentencing practices with regards to the trafficking offending.[14] Of course, each case must be considered on its individual facts. The authorities relied upon by the prosecution on the issue of current sentencing practices cover a fairly broad range of trafficking offending, with each case having its own particular sentencing factors applicable. Nevertheless, I have taken into consideration those authorities and others, in consideration of current sentencing practices.
[14]Gioffre v R [2020] VSCA 177; Zarghami v R [2020] VSCA 74; Tran v R [2018] VSCA 107; and DPP v White [2020] VCC 8
Applicable Sentencing Purposes and Principles
80I have already referred to the need for any sentence imposed to reflect the sentencing purpose of specific deterrence. Given the nature and severity of your offending, there is also a need to reflect the important sentencing principle of general deterrence, together with the principles of denunciation and community protection. As has been stated in this and other courts, drug trafficking is pernicious. It is a form of criminal offending which appears to be easy and offers substantial financial rewards. It seeks to derive financial gain from the sale of a product to others which has the capacity to cause them physical and mental harm. The trafficking of methylamphetamine has caused untold damage to the community. Those who engage in trafficking of this dreadful substance must expect significant punishment, and the community must be protected from such offending. As I have stated, there is also a need in imposing sentences in your case to appropriately facilitate your rehabilitation.
81In my view, the weapons offending being distinct from the trafficking offending, a measure of cumulation is warranted between these two types of offences. Each of you faced two weapons offences, in relation to possession and disposal. I agree with the defence submissions given the concurrent dates of these offences, that concurrency is warranted as between the two firearms offences. In relation to the other offences including the related summary offences, there is a need to reflect the distinct criminality together with the objective gravity of those offences through a degree of cumulation where appropriate, subject as always to the overriding principle of totality.
82In all the circumstances, I am not satisfied that a combination sentence involving a sentence of imprisonment together with a community correction order would appropriately reflect the applicable sentencing factors and purposes to which I have referred. The seriousness of your offending, together with the other matters to which I have referred, lead me to the conclusion with respect to both of you that sentences of imprisonment with parole eligibility components are the only appropriate sentences available, consistent with the parsimony principle. In that regard it is hoped that your eventual reintegration into the community is facilitated through appropriate specialist interventions.
Sentences to be Imposed
83Mr Karazisis, you are sentenced as follows:
84On Charge 1, trafficking in a drug of dependence, namely methylamphetamine, you are convicted and sentenced to 2 years and 6 months’ imprisonment. This is the base sentence.
85On Charge 2, possession of an unregistered general category handgun, and Charge 3, disposal of a general category handgun, you are convicted and sentenced to an aggregate sentence of 18 months’ imprisonment, these offences forming part of a series of offences of the same or similar character.
86On Charge 4, possession of a drug of dependence, namely Diazepam, you are convicted and sentenced to 1 month’s imprisonment.
87On Charge 5, handling stolen goods, you are convicted and sentenced to 5 months’ imprisonment.
88On the summary offence of possess cartridge ammunition, you are convicted and fined $300.
89On the summary offence of dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to 2 months’ imprisonment.
90On the summary offence of possess prohibited weapon, namely a flick-knife, you are convicted and sentenced to 7 days’ imprisonment.
91On the summary offence of committing an indictable offence on bail, you are convicted and sentenced to 1 month’s imprisonment.
92On the summary offence of breach conduct condition of bail, you are convicted and sentenced to 1 month’s imprisonment.
93On the summary offence of failing to comply with a direction from police for computer access, you are convicted and sentenced to 1 month’s imprisonment.
94On the summary offence of driving whilst disqualified, you are convicted and sentenced to 1 month’s imprisonment.
95I order that 8 months of the aggregate sentence imposed on Charges 2 and 3 on the indictment (the weapons offences) and 1 month of the sentence imposed on Charge 5 (handling stolen goods), be served cumulatively upon each other and upon the base sentence imposed on Charge 1, making a total effective sentence of 3 years and 3 months’ imprisonment. I order that you serve a period of 2 years and 3 months before becoming eligible for parole.
96Pursuant to s.18 of the Sentencing Act 1991, I declare a period of 315 days’ pre-sentence detention, and direct that this be deducted from your sentence.
97Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have imposed a total effective sentence of 4 years and 6 months’ imprisonment, with a non-parole period of 3 years and 4 months.
98Mr Dei Wal, you are sentenced as follows:
99On Charge 6, trafficking in a drug of dependence, namely methylamphetamine, you are convicted and sentenced to 2 years’ imprisonment. This is the base sentence.
100On Charge 7, possession of an unregistered general category handgun, and Charge 8, disposal of a general category handgun, these offences forming part of a series of offences of the same or similar character, you are convicted and sentenced to an aggregate sentence of 18 months’ imprisonment.
101On the summary offence of possession of a flick-knife, you are convicted and sentenced to 7 days’ imprisonment.
102On the summary offence of driving whilst disqualified, noting that you have a number of prior convictions for this offence, you are convicted and sentenced to 2 months’ imprisonment.
103I order that 8 months of the aggregate sentence imposed in relation to Charges 7 and 8 on the indictment (the weapons offences) be served cumulatively upon the base sentence imposed on Charge 6, making a total effective sentence of 2 years and 8 months’ imprisonment. I order that you serve 1 year and 10 months’ imprisonment before becoming eligible for parole.
104
Pursuant to s.18 of the Sentencing Act 1991, I declare a period of 315 days’ pre-sentence detention, and I order that this amount be deducted from your
sentence.
105Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed a total effective sentence of 3 years and 9 months’ imprisonment with a non-parole period of 2 years and 8 months.
106Finally, I will make the various ancillary orders sought by the prosecution, these applications not being opposed by each of you.
107That completes my sentencing remarks. Mr Pickering, any issues, ambiguities?
108MR PICKERING: Not issues or ambiguities, Your Honour. Did Your Honour make orders with regard to the licences and did I miss them?
109
HIS HONOUR: I have not. You say I should have, is that something that
is - - -
110MR PICKERING: Your Honour, it was - you have a number of powers, I've listed at the end of the summary which is that for driving disqualified there's no mandatory penalty.
111HIS HONOUR: No.
112MR PICKERING: But there is an optional penalty in effect under s.28 you are at large and secondly, you have other powers under s.89A of the Sentencing Act 1991 which is effectively for any conviction of a criminal offence you are at large to impose a licence condition as well. In the circumstances, Your Honour, where most of this offending is not related to drug trafficking say for, in effect, travelling to and from the transactions, it would probably be more appropriate under s.28 of the Road Safety Act 1986 with regard to the driving disqualified.
113HIS HONOUR: Yes and it is discretionary firstly and no minimum period.
114MR PICKERING: Correct.
115HIS HONOUR: Yes. In relation to the drive whilst disqualified charges with regards to both Mr Karazisis and Mr Dei Wal, with regards to Mr Karazisis any licence held is cancelled and he is disqualified from obtaining another for a period of two years. With regards to Mr Dei Wal the disqualification period is three years given his more extensive driving whilst disqualified history.
116MR PICKERING: Those are the matters, Your Honour.
117HIS HONOUR: Yes, thank you. Mr McGarvie, any issues, ambiguities from your perspective?
118MR McGARVIE: No, Your Honour.
119HIS HONOUR: Ms Fayman?
120MS FAYMAN: No, Your Honour.
121HIS HONOUR: Yes, thank you.
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