Director of Public Prosecutions v Katsonis

[2024] VCC 494

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00950

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELEFTHARIOS KATSONIS

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JUDGE:	HER HONOUR JUDGE ELLIS
WHERE HELD:	Melbourne
DATE OF HEARING:	8 April 2024
DATE OF SENTENCE:	18 April 2024
CASE MAY BE CITED AS:	DPP v Katsonis
MEDIUM NEUTRAL CITATION:	[2024] VCC 494

REASONS FOR SENTENCE

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Subject:                   CRIMINAL LAW       

Catchwords:           one charge of recklessly deal with proceeds of crime - two charges of possession of precursor chemicals - one charge of possession of substance, material, document or equipment for trafficking a drug of dependence – plea of guilty         

Legislation Cited:     Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Drugs, Poisons And Controlled Substances Act1981 (Vic); Drugs Poisons And Controlled Substances (Precursor Supply) Regulations 2010 (Vic)

Cases Cited:            R v Verdins (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169

Sentence:              15 months imprisonment, with a non-parole period of 8 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S Profitt	Office of Public Prosecutions
For the Accused	Mr P Morrissey SC	Melasecca Kelley & Zayler

HER HONOUR: 

1Eleftharios Katsonis, you have pleaded guilty to:

· One charge of recklessly deal with proceeds of crime contrary to s 194(3) of the Crimes Act1958 (Vic), which carries a maximum penalty of 10 years imprisonment (Charge 1);

· Two charges of possession of precursor chemicals contrary to s 71D of the Drugs, Poisons And Controlled Substances Act1981 (Vic), which carries a maximum penalty of five years imprisonment (level 6) or 600 penalty units (Charges 2 and 3); and

· One charge of possession of substance, material, document or equipment for trafficking a drug of dependence contrary to s 71A(1) of the Drugs, Poisons and Controlled Substances Act 1981 (charge 4), which  carries a maximum penalty of 10 years imprisonment.

2Charge 3 is a rolled-up charge comprising a variety of precursor chemicals.

Circumstances of Offending

3The circumstances of your offending were set out in a Prosecution Opening Upon Plea (Exhibit A).  The charges arise out of a Victoria Police Major Drug Squad investigation into the manufacture, distribution and trafficking of drugs of dependence by you and a co-offender Troy ADLER.

4During the investigation, you met with Mr. Adler on three occasions between September and November 2021 in the car park of the Craigieburn Plaza shopping centre. On each occasion, a large bag of unknown contents was exchanged between the two of you.

Charge 1

5On 29 November 2021, you met with Mr. Adler at the same car park at 10:45am.  Conversations intercepted from within a black Holden commodore, registered to your mother and driven by you, captured you saying that you had one more pick up to do and you would know in the next hour.  You also referred to the amount of ‘750’ and said the customers you dealt with were paranoid.

6CCTV footage showed you place a large black sports bag in the boot of
Mr Adler’s vehicle.  Mr Adler gave you an enviro bag.  The two of you then left in your vehicles.

7Mr Adler was observed by surveillance crew to travel to an address in Glen Waverley where Mr Adler had been directed via a Wickr group chat.  He was then instructed via the chat group to drive to 3 Montclair Avenue, Glen Waverley, and to place the item 'at the right hand side with the tissue box' (the drop location).  The Wickr message included an image depicting the location and items present to assist Adler with where to place the bag.  He then sent a message indicating that the drop was done, followed by another warning the police had arrived.

8At this point, Mr Adler had been approached by police and his vehicle was searched revealing drugs of dependence.

9Police then searched the area at 3 Montclair Avenue and located a large black Nike bag which contained multiple bundles of cash wrapped in black plastic, totalling $750,400.  Adler later told police he had picked up the bag from Craigieburn but he did not know who he had collected it from, and that he had been tasked to drop off the bag by an unknown party via encrypted communication.

Charge 2

10During the investigation, lawfully intercepted information indicated your involvement with possession of precursor chemicals.

11At this time you were residing at 12 Walton Close, Craigieburn with your long term partner Jelica Poljakovic, a co-accused in relation to the possession charges.  In addition to you using the black Holden Commodore, you also used a rental car between 22 and 25 January 2022- namely a blue Toyota Yaris sedan.

12On 5 January 2022 police intercepted a conversation inside the Holden in which you told Ms. POLJAKOVIC:

(a)  the “Boss” had organised and was facilitating a task for you to attend a location on Friday to drop off an unknown commodity or to collect an unknown commodity;

(b)  you had not been given the exact location of where to go and that you were only aware that it was nearby;

(c)  those who may collect what you dropped off may be the 'same dudes that TATA caught up with when he was doing the drop';

(d)  the 'Boss' believes 'TATA' was hot and law enforcement were watching him, referring to Adler).

13You also discussed anti-surveillance techniques en route to any location provided by the 'Boss' and that these would include:

·     pulling over and stopping on the freeway for five minutes;

·     taking turns unexpectedly; and

·     conducting multiple U-turns and unscheduled stops.

14You said if you felt you were being followed or a car pulled up behind you, then you would drive straight home; and said TATA, 'should have used a car other than his own'.

15During the conversation, Ms. Poljakovic responded about doing the 'drop' in two or three ‘goes’; and being scared at the prospect of 'coppers' being involved.

16The following day police observed Poljakovic drive you to Lion Car Rentals in Somerton where you leased a vehicle, being a 2003 white Toyota Corolla sedan.

17On 9 January 2022 a further conversation was intercepted within the black Holden, in which you told Ms. Poljakovic that a male associate was arrested in Ballarat for ‘cooking’ and having ‘all the chemicals’.  You again discussed conducting anti-surveillance techniques; and also referred to Bendigo being a different road trip, involving ilforstone, ephedrine and pseudoephedrine.

18Ms Poljakovic responded that she was surprised you had not been 'ratted' out yet and you discussed storing and transporting an item for other people, and the two of you putting the item somewhere.

19On 19 January 2022, a further conversation was intercepted within the black Holden:

(a)The two of you discussed digging and burying an item;

(b)Ms. Poljakovic asked if it could be done in one go, saying she could wait around the corner somewhere in the car for you while you did the digging;

(c)She suggested that you take a metal detector with you as a form of cover;

(d)You suggested that you would go to the location first and dig, then return later with the item in case you were caught by the cops and they searched the car;

(e)You stated if caught by the police with the item then you would be ‘fucked’; and

(f)You described the location as having a couple of creek beds, on the highway and the item being stuck under a bridge or under water.

20You later discussed having a look at a particular bridge, going for a walk and shoving it under a bridge.  Ms. Poljakovic mentioned using a container and you said to wrap it in a black garbage bag 'if it is dark', telling her 'it’s not there to be permanent, it is there to be collected'.

21At this time, the black Holden travelled along the Hume Freeway northbound near the Craigieburn Road East exit.  It stopped for three minutes in the vicinity of 715 Craigieburn Road East, Craigieburn (Craigieburn Road East location) where you left the vehicle for a short period.

22Upon your return you said there were drains covered by grass which was great, and that you would stick it in the drain sideways but would have to check the bottles one more time.  You spoke about wanting Ms. Poljakovic to drop you off at the gate as you did not want to be 'carrying 20 kg’ as ‘it will be heavy.'

23Police later attended this area and located an empty plastic carboy hidden in a drain.

24Further conversations were monitored between the two of you on
20 January 2022 in which:

(a)you and Ms Poljakovic discussed burying two barrels, how best to do it and there being a risk;

(b)Ms Poljakovic said not to carry a barrel until a location was found, and that looking around the area was not illegal; and

(c)while driving southbound on the Hume freeway, you pointed out the location of a creek near the Merri Creek over pass.

25The following day, further conversations were intercepted within the black Holden:

(a)You discussed 20 litre tubs, ingredients, and making money with others;

(b)You mentioned something smelling like sassafras oil and having twenty litres of it;

(c)You referred to using only a rental car when going past the location and taking a video;

(d)You mentioning draining the 'other two into one', putting the oil into two containers, and it having no prints on it, no hazards, and no stickers; and

(e)Needing to get a new SIM on your 'dodge phone'.

26During this conversation, the black Holden travelled to and parked at the Craigieburn Road East location where you left the vehicle.  Upon return, the two of you had a discussion about a video of the drop location and also about another road user who had pulled over to use his phone, being a potential undercover police officer.

27On 24 and 25 January 2022, a blue Toyota Yaris sedan travelled to the Merri Creek location.  On the first occasion it was present for 23 minutes at that location.  It is the prosecution case that sometime between 23 and 25 January 2022, you attended the Merri Creek location and buried two plastic carboys containing safrole.

28On 29 January 2022 you and Ms Poljakovic left your home in the black Holden and drove to the Merri Creek location where you remained parked in the emergency lane of the Hume freeway for five minutes.  You left the vehicle and walked down the embankment towards the creek bed.  You later discussed how good a hiding spot it was and how it was full of water.  Ms Poljakovic asked the exact location it was buried, and asked you to take a photo of it.  You stated that you would have to put a marker or stake there like the council do for revegetation; and referred to giving someone the GPS location.

29Two days later on 31 January 2022, at 6:44am, the two of you travelled again in the black Holden to Merri Creek, during which the following conversation was captured:

(a)You said you would have to make it look like a break down;

(b)Ms Poljakovic told you to put the tools on the ground and slide them over, and wait for the cars to go past;

(c)You agreed, stating that was how you did it last time instead of carrying them over.

30You exited the vehicle and returned to the Merri Creek location, and
Ms Poljakovic drove away.  Upon returning, you said, 'I covered it… rocks and I filled it in with soil. Even if it does fucken happen again the rocks will hold it and it won’t travel as far.'

31At 11:15am that day police attended and searched the Merri Creek location where they located a wooden stake and a pile of rocks as you described.  Upon digging into the creek bed, police uncovered two 20-litre plastic carboys approximately 30 cm below the surface and wrapped in black plastic garbage bags.

32Both carboys contained a dark brown liquid which was found to contain a total of 38.5 kg of safrole – 18.8 kg in the first and 19.7 kg in the second.

33Safrole is a precursor chemical and was seized in quantity in excess of the prescribed amount of 10g, pursuant to schedule 1 of the Drugs Poisons And Controlled Substances (Precursor Supply) Regulations 2010 (Regulations).

Charge 3

34On 8 February 2022 police executed search warrants at your home address where both you and Ms Poljakovic were arrested.  Using a key kept on a keychain belonging to you, police opened a rear shed which was shut and secured with a padlock.  Inside the shed police located and seized:

(a)1.073 kilograms of safrole;

(b)31 grams of isosafrole;

(c)1.068 kilograms of methylamine;

(d)29.9 grams of palladium;

(e)181.7 grams of mercuric chloride;

(f)11.744 kilograms of ammonia;

(g)4.269 kilograms of nitromethane; and

(h)75.258 kilograms of phylanine.

35Each of these are precursor chemicals and were seized in quantities in excess of the prescribed amount pursuant to schedule 1 of the Regulations.

36Various items were also located such as glassware, a pressure cooker, flasks and gloves – items which can be used as equipment for a trafficking purpose.  Analysis of the seized items revealed traces of various precursor chemicals on the equipment such as glassware, a hot plate and a pressure cooker.  A forensic officer concluded that the items included in the exhibit log would be sufficient for the manufacture of both MDMA and methylamphetamine, and that such manufacture would be possible with the addition of two further chemicals.

37You and your partner were arrested and charged on the same day.  You were remanded in custody until 3 March 2022.  Parties were in discussions as to resolution during the committal phase, and there was an application for summary jurisdiction which was unsuccessful.  The matter eventually resolved on 2 June 2023 and proceeded by way of straight hand up brief.  There were then a series of adjournments of the plea as a consequence of your ill health.  The matter ultimately proceeded as a plea before me on 8 April 2024.

38Your co-offender and partner Ms Poljakovic pleaded guilty to possession of precursor chemicals and was sentenced to a community corrections order in the County Court on 22 June 2023.  She was considered to have a lesser role than you.

39Troy Adler pleaded guilty to offences including trafficking in a large commercial quantity of drugs and was sentenced to a term of imprisonment.  He was sentenced with respect to the same amount of money that is the subject of Charge 1, but was sentenced on the basis of knowingly, rather than recklessly dealing with proceeds of crime, and a different maximum penalty applies.  In light of that, parity does not weigh heavily in the sentencing process.

Prior Criminal History

40You have admitted some prior criminal matters from 2009 relating to driving offences and a charge of recklessly cause injury.  These are not relevant to the offending before me.  You have no outstanding matters.

Personal Circumstances

41These were set out in detail in a psychological report prepared by Luke Armstrong, and on the plea.  Your parents immigrated to Australia from Greece in 1964.  Your father was a career soldier who later trained as an accountant and your mother was a qualified seamstress.  However upon arrival into Australia your father's qualifications were not recognised and he worked instead in manual labour.

42You were born in 1971, and you are the youngest of two.  You have described your father as a tyrant, reporting that he would assault your mother and your brother and yourself regularly.  He would unpredictably strike you to the face with an open hand and across the back of the legs with a tree branch.  He was also verbally abusive towards you.  You considered yourself to be the misfit of the family.  Within your family home you were not free to speak your mind, but rather it was an unpredictable and volatile environment.

43You have recalled a particularly disturbing event in which your father violently killed your pet rabbit in front of you when you were aged somewhere between six and eight years.  You have described living in fear of your father, and you learned to be compliant fearing abuse or extreme rejection.  Although your mother would try to shield you from your father, she was too frightened to contradict him.  You did however enjoy an affectionate and protective relationship with your mother.

44Although you were what is described as a cheeky school student, you had no difficulties with your learning.  Growing up you worked in the family business with your brother from a young age as this was expected of you.  On an occasion when you made a mistake at work, your father tied you to a chair and you feared he was going to beat you up, and you would not seek to overpower him out of respect.

45You had dreams of being a mechanic, but your father did not wish for you to pursue this and instead compelled you to enrol in an engineering degree.  You eventually left the course and began work in hospitality.  In your 20’s you began working in IT and slowly embraced freedom being away from your father.  From your late 20’s you worked repairing computers with Harvey Norman.  A relationship fell apart which resulted in you selling property leading to significant debt, something which occurred years later again at the conclusion of another relationship.  You chose to let your partner on those occasions take the assets rather than create issues challenging property items.  You later spent 10 years working in sales at The Good Guys until you were beset by health problems, following a heart aneurysm.  This led to an ongoing chronic heart condition for which you take medication.

46When you were in your 30’s your father left your mother and returned to Greece leaving your mother in significant financial trouble.  To this day you are still unaware as to why he left.  You and your brother gave your mother advice about how to purchase a property.  At a later stage in life you moved back in with your mother.  Your father passed away in 2022 and just prior to his death you approached him for financial support to pay for your legal fees, feeling you had no other alternative.  This has left you with a complex feeling of guilt - particularly that he died knowing you were facing these proceedings.  Psychologist Luke Armstrong considers that you have had a classic dichotomous view of your father.

47You have been in a relationship with Ms Poljakovic for 15 years.  You do not own property together.  Five or six years ago, you were able to secure financial assistance to establish a laundromat in Moonee Ponds.  You set this business up in August 2019 and had developed client contracts with commercial businesses including restaurants, hairdressers and physiotherapists however with the onset of COVID-19 you lost many, if not all of your clients.  A period of financial hardship then ensued during which, upon reconnecting with an old friend with whom you were impressed, you found yourself taking the opportunity to make money, fearing you would lose your assets.

48The laundromat business has ultimately survived and you have taken steps to ensure it can continue to operate.  This will involve Ms. Poljakovic having to step in and run the business in addition to her own dog grooming business.

Mental health

49A  number of psychological reports were prepared by Mr. Luke Armstrong who has been seeing you over the last couple of years.  Mr. Armstrong considers that given your exposure to significant and chronic child abuse, your sympathetic nervous system response was one of extreme fear.  Mr. Armstrong considers that your profile is consistent with features of Post Traumatic Stress Disorder.  He considers that you present with features of a Dependent Personality Disorder.  Mr. Armstrong notes that you have a complete aversion to confrontation or disagreement and consequently you have difficulty identifying or responding to situations where you could be exploited.  He considers that you have experienced significant distress as a consequence of an inability to place boundaries on significant others.

50Mr. Armstrong considers that you are focused on potential vulnerabilities in custody which is exacerbating your PTSD symptoms.  In his view, a term of imprisonment would be more burdensome for you than it would for a prisoner without your psychological profile.  To that end your counsel submits that the principles in R v Verdins,[1] namely limb 5 has application here and I accept this.

[1] (2007) 16 VR 269.

51I take into account the circumstances of your upbringing and the way in which this has impacted your behaviour into adulthood.  Whilst your counsel does not submit that your avoidance of confrontation and susceptibility to exploitation reduces your moral culpability, it is relevant in understanding your behaviour to some extent and to place your offending in context.

52You have been seeing psychologist Tracey Allen since February 2023 to manage your anxiety and depression.

53As I mentioned a moment ago, you have suffered from a number of health issues, in particular heart difficulties which required aortic surgery in 2014 and 2015.  A number of medical documents were tendered on the plea.  You have also recently experienced acute renal issues and you suffer from sleep apnoea.  To this end you require a CPAP machine which may not be available to you in custody.

54Character references were tendered in which you are described as a hardworking, honest, dependable person who is kind and respectful to others; always willing to help out.  Your partner’s daughter describes the love and respect you have shown toward Ms. Poljakovic.  Your conduct is considered out of character.  Your brother notes your selflessness and the way in which you have assisted homeless people who frequent the area near your business.  Your referees speak of your remorse, and I accept that you are remorseful.  I take the references into account.

55In his most recent report, Mr Armstrong refers to the significant shame and stress you have that you involved your partner in your offending.  He considers that you have capacity for significant remorse.  You have recognised that your offending has far reaching, negative consequences.

Nature and Gravity of Offending

56Your involvement in dealing recklessly dealing with proceeds of crime was not trivial.  You performed an active role in handing over what was a very substantial amount of money.  The prosecution points out that you referred to the amount of ‘750’ before handing over the bag, which suggests you knew the amount contained within the bag.  That you were entrusted with such an amount suggests a degree of responsibility.

57The chemicals of which you were in possession are prohibited because of the great potential for misuse in the manufacture of illicit substances.  This was a considerable quantity - over 38 kilograms of safrole; well over the prescribed 10 grams.  In your role you assumed considerable risk.  Your partner, Ms. Poljakovic played an important role however the prosecution conceded there was no evidence she knew the quantity involved.  You on the other hand had more of a connection with those orchestrating this enterprise.  As Mr. Morrissey described, you were the moving spirit.

58The other amount of chemicals located at your home were also substantial.  In some instances, well over the prescribed quantities.  As your counsel concedes, storage of these chemicals is not trivial.  Indeed hiding chemicals in a location for others to collect is not also a trivial matter.

59As for Charge 4, there were a very large number of items located.

60Overall, whilst I accept your role was toward the lower end, it was one of responsibility. I must however have regard to the maximum penalties and note that you are not to be sentence for trafficking in the chemicals seized.

61The prosecution submits that you were more than a mere courier.  You were a knowing and active participant with respect to the dropping of the two carboys of safrole.  I accept that by facilitating the exchange of cash and storage and concealment of chemicals and manufacturing equipment, you have played an important role in a drug trafficking enterprise.

62Your counsel submits that you became involved in the offending in the context of COVID-19 and the threat the pandemic posed to your newly established business.  In that setting, you succumbed to temptation.

63The prosecution submits that your motivation was more than a desire to stay afloat, pointing to a conversation intercepted in which you discussed having 'made enough money' and being semi-retired.  Whilst that conversation suggests a degree of boasting as to money you have made, not a lot of weight can be put on what could equally be viewed as big noting.  In any event, there is no evidence of enrichment or unexplained wealth, other than that you were found with a considerable quantity of cash upon arrest.

Plea of Guilty

64Your plea of guilty was entered at committal stage, and accordingly it is of significant utilitarian value. You have spared the community the significant expense of a trial and further, your plea demonstrates a willingness to facilitate the course of justice.  It is also evidence of remorse.  I accept that it was a plea at an early opportunity.

65Your plea of guilty was entered at a time when the court was experiencing a considerable backlog as a result of the COVID-19 pandemic.  Since the resolution of this matter, the court has conducted an audit and determined that the backlog has now been substantially reduced to a level that existed prior to COVID.  Nevertheless by entering a plea of guilty, you contributed to a reduction in that backlog and, as the Court of Appeal articulated in Worboyes v The Queen,[2] your guilty plea is worthy of greater weight in mitigation than a plea entered at a time when the community and courts were not afflicted by the pandemic’s effects.

[2] [2021] VSCA 169.

Delay

66I accept that there has been a period of delay between this offending and your sentence.  You indicated an intention to plead guilty in June last year, and due to your ill health, the plea could not proceed sooner.  As a consequence, you have had these proceedings hanging over your head since your arrest in January 2022, and no doubt the uncertainty of the outcome has been stressful.  During this time, you have been on bail, but have remained free of further charges and have continued to operate your business.

Prospects of Rehabilitation

67Mr. Armstrong considers that you are a low risk of re-offending after reviewing you on a number of occasions.  You have accepted responsibility for your conduct and you appear to appreciate the impact your offending has on others.  The fact that you have a strong work history, a business that you hope to sustain, a very limited prior criminal history, insight into your behaviour and the support of your long term partner, all enhance your prospects of rehabilitation, which I consider to be very good.

Relevant Sentencing Factors

68The basic purposes for which a court may impose a sentence include just punishment, deterrence, denunciation, community protection and rehabilitation. As required under the Sentencing Act 1991 I take into account various factors when formulating an appropriate sentence including the maximum penalties, the seriousness of the offending, your culpability, and your personal circumstances.

69In determining the appropriate sentence I pass must balance the interests of the community in denouncing this conduct with the interests of the community in seeking to ensure that, as far as possible, you can be rehabilitated.  I must also have regard to principles of parsimony.

70General deterrence is an important sentencing consideration.  Those who might be inclined to deal recklessly in the proceeds of crime or possess precursor chemicals must understand that it will be met with significant punishment.  Specific deterrence is also not irrelevant.  For the avoidance of doubt the court denounces your conduct.

71The prosecution submits that the offending warrants jail with a head sentence and non-parole period.  Your counsel concedes that having regard to the gravity of the offending, that a term of imprisonment is the only available sentence.  
Mr. Morrissey submits that having regard to the various matters in mitigation, the court should consider a shorter non-parole period.

72I must have regard to the principle of totality, and accordingly, I have ordered a degree of concurrency.  However the sentence should a reflect that you have pleaded guilty to a number of different offences, albeit that there is some degree of overlap as between Charges 2 and 3, and to some extent Charge 4.  The sentence also reflects that Charge 1 encompasses the two occasions on which you recklessly dealt with the proceeds of crime.

73Finally when sentencing on a rolled-up charge, in this case Charge 3 which concerns a number of chemicals, the court must consider all of the circumstances of the offence but the plea of guilty must still be treated as entered to a single formal charge.

Sentence

74On Charge 1, recklessly deal with proceeds of crime, you are convicted and sentenced to 8 months imprisonment;

75On Charge 2, the charge of possessing precursor chemicals, you are convicted and sentenced to 8 months imprisonment;

76On Charge 3, possession of precursor chemicals, you are convicted and sentenced to 4 months imprisonment;

77On Charge 4, possessing substance, material, documents and equipment for trafficking purpose, you are convicted and sentenced to 4 months imprisonment.

78The sentence imposed on Charge 1 will be the base sentence.

79I order that 4 months of the sentence imposed on Charge 2 is to be served cumulatively on the sentence on Charge 1.

80I order that 2 months of the sentence imposed on Charge 3 is to be served cumulatively on the sentence on Charge 1 and other sentenced imposed today.  

81I order that 1 month of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed on Charge 1 and other sentences imposed today.

82This equates to a total effective sentence of 15 months imprisonment.

83I fix the period before which you can become eligible for parole at 8 months.

Pre-sentence detention

84I declare 33 days pre-sentence detention to be reckoned as time served.

Section 6AAA

85But for your plea of guilty, I would have sentenced you to a term of imprisonment of 22 months with a non-parole period of 13 months.

Orders

86I make the orders for forfeiture and disposal in the terms that are sought.

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