Director of Public Prosecutions v Kavvadas

[2017] VCC 1432

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-01129

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS KAVVADAS

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 October 2017
CASE MAY BE CITED AS:	DPP v Kavvadas
MEDIUM NEUTRAL CITATION:	[2017] VCC 1432

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Kohn	Office of Public Prosecutions
For the Accused	Mr P. Morrissey SC

HIS HONOUR:

1Nicholas Kavvadas, you have pleaded guilty to importing a commercial quantity of a border controlled drug namely heroin.  The facts of the matter are set out in Exhibit 1, the prosecution opening upon plea.  Those facts are not disputed by your counsel and any reader of these reasons can refer to that exhibit to place the sentence in its full factual context.

2Briefly stated you travelled to Malaysia on 4 February 2017 with the intention to participate in a scheme of bringing into the country the prohibited border controlled drug.  It was a somewhat complicated scenario in relation to suitcases.  Two co-offenders had identical suitcases on the leaving day which was 12 February 2017.  Their suitcases had locks on them.  They took them through Malaysian Customs and it was in those suitcases that the drugs were contained.  At Melbourne you picked up from the baggage carousel those two suitcases in order to take them through Customs. Upon opening of the suitcases by police 47,487.3 grams of heroin were discovered.  That is approximately 19 times the commercial quantity. 

3You became involved in this, it would seem, through some gambling you took part in with some Asian gentlemen.  You became indebted to them because of the gambling and also some drugs that you were taking at the time.  The offer was that you would be paid $50,000 for the importation. 

4Your role, although at the lower end of the operation and if one has to give a label to it, could be described as a courier role, nevertheless was an essential one.  That is, someone had to physically convey the suitcases through Customs in Australia.  Unlike some of these cases where the courier innocently departs Australia and becomes involved in the scheme somehow whilst on holidays, your intention when you left Australia to be part of this scheme.  You did it for a promised, substantial monetary reward.

5You have no other criminal record although, of course, that might have been a positive for the originators of the scheme in that no red flags would have come up when you were to clear Customs in Australia.

6You were aged 20 at the time of the offending.  This is serious offending and
I am satisfied that a sentence of imprisonment is the only appropriate sentence taking into account all the relevant sentencing considerations.  I have considered and applied that matters set out in s.16A(1) of the Crimes Act (Cth).  I do not sentence you on the basis that you knew what the type of drug was contained in the suitcases but of course you knew that it was a border controlled drug.

7I accept that you entered a plea of guilty at the earliest opportunity and although the prosecution has made a submission that this was an overwhelming case, even considering that in my view a plea of guilty in these type of drug cases has a significant utilitarian effect.  It saves the court the time and cost of a drug trial and it is also an indication of responsibility by you and acceptance by you of your behaviour.  As I remarked during the plea this court often has to run what are seemingly hopeless drug trials with no actual defence.  You have not chosen to take that course and thus you will be given the appropriate discount for your plea of guilty.  My view has always been that that should not be a token discount.

8I have considered the comparative cases that I have been referred to and applied the law as to how I should consider that type of material. 

9In mitigation your counsel relied on;

10(1) A written outline. 

11(2) His oral submissions. 

12(3) The references that were tendered and I read them in some detail yesterday and I was impressed by the references and people's confidence in your ability to rehabilitate yourself and put this behind you when you are released from custody. 

13(4) He referred me to the report of Jeffrey Cummins.  It sets out your personal details which I will go to shortly.  It also sets out the circumstances of your dependence on gambling and your involvement in the use of drugs.  He said, in paragraph 34:

"In my opinion he was genuinely experiencing symptoms of anxiety and depression at the time of the offending.  Although I do assess those symptoms as having reached the magnitude sufficient to warrant the diagnosis of an adjustment disorder.  However I did form the view there was a realistic nexus between him feeling anxious and depressed and his decision to travel overseas and to relieve his state of financial indebtedness". 

14He said that you were expressing genuine regret to him.  He said you presented as being relatively immature and naïve and that contributed to you vulnerability.  He said you had a gambling disorder which was severe.  He said that as a relatively young 20 year old with none of these circumstances that you will most probably struggle, psychologically, with a gaol sentence and said your prospects for long term rehabilitation are good.

15Your counsel in his written submissions put forward the proposition that the case of Verdins principles 1 and 5 and 6 were invoked.  These have to do with mental incapacity and its effect on the responsibility of the person committing the offending.  As discussed during the plea it is my view that the report of
Mr Cummins does not establish the nexus between his opinion as to a gambling disorder and almost reaching a diagnosis of adjustment disorder sufficient to invoke the Verdins principles known as Verdins 1.

16As to the effect on you in gaol, which is Verdins 5 and 6, it is somewhat paradoxical that a good deal of the plea is devoted to the positive steps that you are taking whilst in gaol towards rehabilitation and that suggests to me that you will be able to cope with your time in custody, particularly with the support that you have.  However I certainly do take into account the fact that you are a young man being in gaol for the first time. 

17(5) Mr Morrissey pointed to the progress you are making in gaol as evidenced by the various certificates that he tendered to me as to the different programs that you have attended so far whilst in custody and I am encouraged by that.  Six, he relied on your age, which I have referred to.  Seven, your plea of guilty, which I have referred to.  He pointed to the support of your family which is evidenced by the number of people in court, family and friends and people who have been visiting you whilst in gaol and that is certainly an important factor for someone who is going to be in gaol for some time and I urge those people who are now present to continue supporting you, both now and upon your release.

18(6) He outlined your personal background, which as I said, in detail contained in the report of Mr Cummins.  You went to school at St Albans North Primary School.  You began using drugs from the age of 14.  You started using cannabis then.  You were experimenting with ecstasy at the age of 19 and cocaine. 
You said that the cocaine helped your concentration with gambling. 

19You, after passing Year 12 at Keilor Down Secondary College, undertook further studies in fitness and commenced a Bachelor of Sport Science at Victoria University in Footscray.  A number of the references refer to your sporting ability and the activities you have subsequently undertaken.  You were an employee at K-Mart and a fashion store and also a gym instructor.  I must say that some of the references of your friends expressed surprise at you being involved in this. 

20(7) He submitted to me that you had what he termed "recoverable" prospects of rehabilitation.  A term that attracts me because I have not heard it used before.  It aptly describes the sentencing conundrum that I have here where
I have to look at things such as your age and other matters put before me, how you got involved in this but I also have to consider the seriousness of the offending and also current sentencing practices. 

21(8) He submitted that you had cooperated with police by making admissions to them. 

22(9) He relied on the fact that you got into this through gambling as a matter that I can take into account of.  I carefully read the case of R v Grossi [2008] VSCA 51 which discusses how gambling should be taken into account particularly with serious offending. I take the position as set out in paragraph 52 where the court referred to the judgment of President Winneke in a case called Luong, Nguyen & Cao where the President regarded the addiction to gambling as a mitigating factor to some extent but it could not loom large in the sentence to be imposed because of the very grave nature of the offending for which the applicant fell to be punished.  I take it into account for another reason, that is, that you did not come into this business as a professional criminal and professional drug trafficker but through the pathway as described.

23(10) Mr Morrissey conceded that a term of imprisonment was the only sentencing option available to me.  He submitted that your offending was at the lower end of the scale and in the context of how I have described it, I would accept that.  As I have said he put that you were in the grip of a gambling addiction and the repayment of the debts that you incurred was your motivation.  He put you as not a career criminal and I accept that.  He said, as I have said, you are recoverable.  You have had a positive attitude to your rehabilitation whilst in custody and you have the support of your family and friends.  He put that you were an immature, young offender with no other criminal history.  He submitted that in consideration of all the matters put on your behalf you should receive a sentence less than that of the lower of the comparable cases I was referred to.  He referred to the principle of parsimony. 

24I have taken into account all the submissions made by both parties and the cases referred to. I am required to balance the interests of the community in seeking to denounce criminal conduct with the interests of the community to seek to ensure, as far as possible, offender are rehabilitated into society.  I have already expressed my denunciation of your behaviour.

25The basic purposes for which a court may impose a sentence are punishment, general deterrence, that is I have to impose a sentence that deters others from committing like crimes and that is a very significant sentencing factor here.  Specific deterrence, that is I have to impress upon you not to re-offend.  I am, insofar as I can be, satisfied that you have good prospects of rehabilitation based on the material in front of me and denunciation and protection of the community. 

26In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it and your personal circumstances.  In particular I take into account in sentencing you, in addition to the matters I have already canvassed, your plea of guilty and your age. It is a significant sentencing factor in my view. You have no other criminal history. Your family support that suggests to me that you have, insofar as I can assess at this stage, good prospects of rehabilitation or to use Mr Morrissey's words, you are "recoverable".  Whether you are or not will depend on how you cope with the sentence I am about to impose upon you. 

27I sent you to a term of imprisonment of nine years and declare that you serve five years, nine months before being eligible for parole.  I declare the time of - how many days?

28MR KOHN:  235.

29MR MORRISSEY:  235, Your Honour.

30HIS HONOUR:  235 that you have already served to be reckoned to be part of the term of imprisonment that I have just imposed. 

31I declare pursuant to s.6AAA of the Sentencing Act that if you had proceeded to trial before a jury and you were convicted by a jury you would have received a sentence in the order of 13 years with a non-parole period of ten years. Are there any other matters I need to consider?

32MR KOHN:  No, Your Honour.

33MR MORRISSEY:  no, Your Honour.

34HIS HONOUR:  All right thank you.  You may take Mr Kavvadas out.  I shall return at ten o'clock, thank you.

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