Director of Public Prosecutions v Kedzierski

[2023] VCC 551

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00457

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARIUSZ KEDZIERSKI

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2023
DATE OF SENTENCE:	5 April 2023
CASE MAY BE CITED AS:	DPP v Kedzierski
MEDIUM NEUTRAL CITATION:	[2023] VCC 551

REASONS FOR SENTENCE

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Subject:  criminal law

Catchwords:                    trafficking - possession - dealing in property proceeds of crime - prohibited weapons

Legislation Cited: Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:Total sentence of four years and nine months, non-parole period of three years and three months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A Dickens (For Plea) Ms I. Abdulnour (For Sentence)	Office of Public Prosecutions
For the Accused	Ms A. Addamo (For Plea) Ms S. Stanley (For Sentence)	Leanne Warren & Associates

HER HONOUR:

1Mariusz Kedzierski, on 1 June 2020 a search warrant was executed at your home in Narre Warren.  A combination of what was found at your home and in your car, and evidence of your mobile phone activities since November the previous year resulted in your arrest, the laying of charges of trafficking and related charges, and your remand in custody.  

2You have now pleaded guilty as a result of the execution of that warrant, and the evidence to which I have referred, to:

one charge of trafficking in methylamphetamine and heroin between
24 November 2019 and 1 June 2020.  That trafficking is based on the quantifiable amounts of those substances (at least 217.2 grams of methylamphetamine and 14.3 grams of heroin) referred to in the phone messages over that period, and a total of 87.5 grams methylamphetamine which was bagged and labelled by various weights: half ball or 1.7 grams, 3.5 grams, 7 grams or .05, which were found in various rooms of the house (Charge 1);

one charge of trafficking in 1-4 butanediol (GHB) on 1 June 2020.  That charge is based on a total of 624.5 grams of GHB bottled in various quantities ranging from 3.5 grams to 241.5 grams, which were found in the house on the day of the execution of the warrant.  Although this is a single date trafficking charge, it is contextualised, amongst other things, by a phone message with your main onseller of the methylamphetamine and heroin referred to in Charge 1, two months before the charge date for this charge, which nominated $1,600 as the price for 1 litre of GHB (Charge 2);

one charge of possession of cannabis, a total of 24.6 grams spread between three packages found in the house and your car, a BMW, which was parked outside the house (Charge 3).

3There were also, in various rooms in the house, many of the indicators of the operation of a general trafficking enterprise. There were significant quantities of sildenafil more commonly known as Viagra, a prescription drug used for erectile dysfunction, powdered caffeine, significant quantities of cash, scales, ziplock bags, bottles and other storage containers, cutting agents, notebooks which needed little or no decoding to appreciate they were your drug trafficking business records, prohibited weapons (a taser and body armour, a bulletproof vest), vast quantities of power tools, laptop computers, electronic equipment including sound systems, and identity documents in the name of other people. 

4You have also pleaded guilty to two related summary offences of possess prohibited weapons. Charge 1 relating to possession of body armour, the bulletproof vest, and Charge 10, relating to possession of the taser.  You have also pleaded guilty to one charge of dealing in property suspected of being proceeds of crime, in respect of the drivers licences and other proof of identity cards in names other than your own, and the power tools and electronic devices found in your home.

5The maximum penalty for these charges are: for trafficking, 15 years imprisonment; for possession of cannabis, one year maximum term of imprisonment if possession for any purpose related to trafficking is excluded, but otherwise five years' imprisonment; for  possession of prohibited weapons, two years imprisonment; and for  dealing in property suspected of being the proceeds of crime, two years imprisonment.

6You have a significant and relevant criminal history.  Leaving aside burglary and theft charges in 1995 for which no conviction was recorded , your adult criminal history commenced in 2014 with charges of drive under the influence, drive whilst suspended, and related charges which resulted in a substantial fine and a disqualification from driving for two years. 

7Your drug trafficking and drug related charges commenced in March 2018.  You were sentenced on charges of trafficking in GHB, methamphetamine, cannabis, possession of ecstasy and other drugs, and use of GHB and methamphetamine, to a 12 month community correction order which was essentially rehabilitative in nature, directing that you engage in drug rehabilitation and programs to address your offending.

8Only four months later in July 2018, you were dealt with for breaching that community correction order and also for further charges of possession of GHB and methamphetamine.  Again, you were placed on a 12 month community correction for  the breach and the further offences. 

9Only five months later, in  January 2019, you were again facing court for breach proceedings in respect of the two community correction orders that had been imposed in July 2018, one of which was the reimposed one in respect of the original March 2018 order. 

10You were also dealt with for further offences, multiple charges of trafficking in methamphetamine and other drugs, multiple charges of possession of weapons and methamphetamine, dealing in proceeds of crime and other dishonesty offences.  Again, the court sentenced you to a community correction order, this time an 18 month one which included in addition to the rehabilitative conditions of engaging in drug rehabilitation, supervision, 100 hours of unpaid community work.  That was in respect of the further offences and by way of re-sentencing for the breached community correction orders.

11Dispiritingly, only four months after that, in May 2019, you were again before the Magistrates' Court, again for breach of the previous community correction orders and again for charges of trafficking in methamphetamine, possession of proceeds of crime, and possession of various drugs: heroin, methamphetamine, GHB, and amphetamine.  The community correction orders were cancelled, you were re-sentenced. This time, to a term of imprisonment. For  the additional offences, you were also sentenced to a term of imprisonment An aggregate sentence in respect of all matters of three months’ imprisonment, together with fines for the drug possession charges was imposed. 

12It is clear that repeated arrests, court orders involving engaging in rehabilitation and punitive sentences have had no effect in deterring you from continuing to traffick.  It is clear that you have been engaged in the business of trafficking in a variety of drugs and its  concomitant, dealing in stolen goods, over a number of years. 

13Ms Addamo, acknowledged in the course of a plea that the offending, in particular, Charge 1, was serious because of the protracted period, over seven months of offending and the significant quantities of drugs involved.  And again, this was of course dispiritingly close to the time that you had previously been sentenced and released from custody in respect of the May 2019 trafficking and related charges. 

14It is clear therefore, that subject to considerations personal to you, denunciation, deterrence, both specific and general, just punishment, and protection of the community must all carry weight in the sentencing mix. 

15As the evidence before me indicates, you have had a significant history of substance abuse yourself.  You know what misery it causes, not just in terms of the physical effect it has on the people who crave yet another hit, but also on the related criminal activity that is involved, in just the debasement of value and quality of life, and the value of respect for other people.  So, to traffic, to profit off other people's misery , not just live in your own misery is something that must be denounced. People who engage in such activity must know that if and when caught, they will be punished.  And for people who persistently do it, they must know that the punishment is going to have to increase in order to attempt to deter them from engaging in like activity. 

16What then was relied on in your favour? Well, you were 42 at the time, a man of mature years, and you are now 45.  You are Polish born, as are your family, and of Polish heritage.  Your family came to Australia when you were 13, seeking, I was told, a better life here and the better opportunities that your parents saw could apply to them, but most importantly to their children in this country.  Despite language difficulties on arrival, you successfully completed secondary school, and did well enough to be accepted for a computer science engineering course at Monash University.  You successfully completed two years of course, but I was told you deferred it to pursue employment and ended up not completing your degree.  It would appear that that was because you had obtained lucrative employment in your chosen field without having the formal qualification. You commenced working for telecommunication companies, mainly in the then burgeoning and growing area of broadband installation, a highly specialised area where specialist skills were clearly necessary.

17There are some disparities in the history that was recounted by Ms Addamo, and that is set out in the report of the clinical neuropsychologist, Matthew Staios, who assessed you for the purpose of the plea.  What appears to be common ground is this, that your parents provided a stable, supportive, and financially comfortable upbringing.  There was no parental separation, no familial substance abuse, no familial violence, no psychiatric or psychological conditions affecting anyone in your family or affecting you which could have adversely impacted upon your life growing up and in early adulthood.

18In your mid-20s, you married, and apparently enjoyed a stable happy relationship for six years.  In 2012, when you were in your early 30s, the marriage broke up.  You report being blindsided, distressed, and began abusing drugs and alcohol.

19I have got before me varying reports of your employment history.  
Ms Addamo was instructed that you continued to work in the telco field, in the installation of broadband and related fields, although with diminishing commitment throughout the period of offending, and even when on bail after being charged with these offence.  Mr Staios reports that you told him you had held various roles since leaving university, none for more than a year, in fields as diverse as delivery driving, property management, and as a financial planner. 

20It is hard to sort it out, but it does appear clear that up until the time of the breakup of your marriage, I accept can count in your favour that you had the capacity to engage in stable, lucrative, and satisfying employment, and clearly showed capacity, aptitude, and at least for relatively sustained periods, commitment. 

21Your first trafficking conviction was recorded in March 2018, and as the history I have recounted shows, you have been regularly before the courts with little gap between each period of offending and sentence since then.

22Mr Staios reports that you recounted after the breakup of your marriage, that you formed successive relationships with women who were also substance abusers.  To the extent that that might have been relied on as seeking to explain or excuse your trafficking, I want to make it clear it is not mitigatory and I do not treat it as such.  Whatever your substance use was or the substance use of the women you partnered with, it does not reduce your moral culpability for the trafficking to which you have pleaded guilty or the related offences. 

23The evidence before me indicates is clearly not miserable street level trafficking, where you were doing no more than covering the cost of your own addiction.  Whatever the level of your own use, you cannot call in aid deprivation, disadvantage, or childhood trauma to explain a pathway to addiction embarked upon when you were too young and too damaged to understand the consequences, to make better choices, or know where and how to seek help.

24On your account, it was not until you were in your early 30s that you turned to substance abuse.  You had had a good and successful career, it would appear before then, your life was not blighted by mental illness, you had a good family, good employment, and good prospects.  You were old enough to know better, to make informed decisions, and to know how to seek professional help for any underlying mental health issues, whether they flowed from the breakup of your marriage or from any other cause. 

25In any event, whether you began trafficking in drugs to support your own use or not, from 2018 your record indicates that you have been actively engaged in the business of trafficking.  It would appear from your priors and your circumstances when you were arrested for these offences in June 2020, that you were living a comfortable lifestyle and were conducting a lucrative trade in supplying a whole range of drugs.  It would appear that your capacity or desire to engage in and support yourself from lawful employment, so ably demonstrated in the past, had dwindled or diminished.

26You told Mr Staios that you had been diagnosed with generalised anxiety and depression in 2015.  No evidence has been adduced to support that.  And you told Mr Staios that you were diagnosed with ADHD in 2021.  Again, no evidence was adduced to support that diagnosis and, for reasons I will deal with shortly when dealing with your conduct since arrest, I am not prepared to assume for sentencing purposes that such a diagnosis has been made, nor, more significantly, that it has any bearing on reducing your moral culpability or otherwise affecting the sentence appropriate in respect of these offences. 

27It follows, there is no evidence of mental illness or psychiatric or psychological condition which operates to reduce moral culpability, to bear either positively or negatively on your prospects for rehabilitation, or which would add to the burden of imprisonment. 

28There has been considerable delay since you were charged with these offences.  It is nearly three years since you were arrested and charged.  That is a very long time to have matters hanging over your head, unresolved.  Some of that delay is of your own making, but much of it is systemic and compounded by the delays in the court system as a result of the COVID pandemic.  That of itself must reduce the sent otherwise appropriate.

29Of the nearly three years since you were charged, 626 days count as time in custody, which counts as pre-sentence detention for these offences. The remaining time is attributable to periods of release on bail, including a period where you were bailed to a residential rehabilitation facility, The Cottage, periods where your bail had been revoked but you remained at large before the execution of a warrant, or periods where you were serving a term of imprisonment for other offences committed, it would appear, after your initial release on bail for these offences. 

30Specifically, from the timeline that was provided to me on the plea, following your arrest and remand on 1 June 2020, you spent about two and a half months in custody before being released on bail.  Three months after that, you were re-arrested for what I understand to be subsequent offences, and remanded in custody again.  You served four months on remand in respect of those subsequent offences and were then sentenced in effect to that four months as time served.  

31It was some way during that period that your bail for these offences was revoked, and so by the time that sentence had expired, you were again on remand in respect of these offences.  After the expiration of that subsequent sentence, you spent about six months in custody before you were bailed again, this time to a residential rehabilitation at The Cottage.  After two months at The Cottage, you were evicted because of a positive drug test, but you remained at liberty for another five months. For some of that time, a warrant was out for your arrest, so you were, strictly speaking, for that last period, at large. 

32It was in April 22, just under a year ago that the warrant was executed, and you have been in custody continuously since then.  So, it has been a very disrupted time in terms of times in custody and time at liberty or serving other sentences since your arrest.  Apart from the time for the last 12 months where you have been continuously in custody, there has not been a stability really in terms of where you have lived, whether you have been at liberty or not. 

33From the time that you were charged until your final remand in April 2022, you had consistently indicated that you intended to contest the charges.  You denied guilt when initially interviewed, and you advanced various ostensibly, if implausibly, innocent explanations for the phone messages, the presence of the considerable quantities of drugs, and trafficking paraphernalia, the cash, the vast quantities of tools and electronic equipment, and the weapons found in the house.  You entered not guilty pleas when you were committed to this court on a straight hand-up brief in March 2021.  And your counsel then acting for you, assured the court at directions hearings over the next 12 months that the matter was definitely proceeding as a trial.  It was not until after your final remand in April 2022 and a subsequent change of legal practitioners that it would appear negotiations commenced which culminated late last year in the resolution of the charges and the entering of guilty pleas. 

34By your pleas, you clearly acknowledge that the explanations that you had advanced in your interview were lies.

35I do not, despite the prosecution concession, treat this as an early plea of guilty. The plea of guilty however is clearly entitled to full weight for its utilitarian value, including the added weight to be given to a guilty plea in reducing the backlog and delays in this court occasioned by COVID. I accept it facilitates the course of justice and I accept that for the past 12 months, that is from the time of your remand in custody, the change of solicitors, and the embarking on the negotiations that ultimately led to the resolution, that you are entitled to have that taken into account as a period when you indicated your preparedness to plead guilty.  And as I have said, much of the delay and the period before that is a delay that is systemic and not of your making. 

36So, the plea of guilty for those reasons carries significant weight, but it is less than the weight that it would carry were it a plea of guilty entered as a result of admissions made when interviewed, entered before committal, at the time of committal, or in the time going through that first year of mentions and directions hearing in this court. 

37The plea though is also entitled to significant added weight by reason of the impact of COVID on people in custody and the significance of that in terms of value and the weight to be given to the plea.  And so, it clearly carries much more weight than a court door plea, but not as much weight as a plea entered at the earliest stage.

38I do not, in the circumstances, treat the plea in itself or in combination with other evidence as indicative of remorse.  I want to make it clear that that is not an aggravating feature.  The only relevance of that is when assessing your prospects for rehabilitation. 

39I do not consider your prospects for rehabilitation to be better than guarded.  That is, to a great extent based on that criminal history of trafficking since you were first before a court for trafficking in early 2018.  Although it is not suggested these offences were committed to fund your own use, clearly, addressing your substance use or abuse will likely reduce your risk of offending.  But, whether you do address your substance abuse is clearly in your hands.  At present there does not seem to be any hard evidence of any commitment, or capacity to sustain a commitment to do so.  Any efforts to date seem to have been related to, or to have dissipated very soon after a non-custodial sentence with a rehabilitative condition was imposed, or very soon after being released on bail to reside in residential rehabilitation. And sadly, your capacity to maintain abstinence or to deal with your substance abuse does not seem to have been able to have been sustained for an extended period.  So, the opportunities afforded to you by the successive community correction orders and on the bail conditions have sadly not yet resolved with any capacity to demonstrate a long-term change.  I have dealt with that in this detail, although this is not, as I have noted, a plea that is put on the basis of there is a direct correlation between this trafficking and your funding your own habit. 

40I have already noted that this is a business of trafficking that you seem to have been engaged in for some time. I am conscious of the fact that I am dealing with a business of trafficking only in respect of Charge 1, and only for a seven month period.  So, what I say is contextualising this, rather than punishing you for a time period that is not the subject of any charges. 

41It is more directed to noting substance abuse can have a significant effect on blurring your moral boundaries and your moral values. Therefore that is why I say dealing with your substance abuse will give you your best chance of then being clearsighted enough to decide whether you want to continue in the business of trafficking or whether you want to return to the sort of meaningful life that you had before 2012. That is, making use of your intelligence, your talents, and your capacity for work, and engaging with people who are not involved in a drug milieu in the manner  you seem to have demonstrated up till then.

42I just want to say something more about what I referred to earlier, and that is the circumstances in which you left The Cottage.  You were exited from The Cottage after two months after testing positive to methamphetamine.  You maintained at the time and still maintain on the plea before me that you did not knowingly take methamphetamine.  Two separate and contradictory accounts were placed before me and both sadly, I have got to say, are implausible.  One was negated by an expert report commissioned by you.  That is, the explanation was that you must have taken it in an adulterated sport or energy drink that you were offered by a fellow resident of The Cottage when working out.  The expert report indicated that that is just not a possible explanation for the detected amphetamine in your system. 

43The other explanation recounted in Mr Staios' report was that you were diagnosed with ADHD by an unnamed doctor, in a telephone consultation, during the period that you were residing in The Cottage and were prescribed Ritalin.  That Ritalin would be permitted to be administered to a person or to be taken to a person who is undergoing residential rehabilitation at The Cottage is highly unlikely.  No evidence was adduced before me to support that diagnosis, the issuing or dispensing of the prescription, or to indicate that it would have been permitted at The Cottage.  All this is relevant only as it relates to the assessment of your preparedness or capacity at this stage to address your own abuse and take responsibility for your behaviour, and so to relate to your prospects for rehabilitation.

44If you do address your substance use, if you decide to live a law abiding life, you have a number of positives that many people in your position do not have the fortune to enjoy.

45I was told you continue to enjoy the support of your parents.  They are, I was told, people who have never been in trouble with the law, who have had good and steady employment throughout their working lives, who have modelled good values, good morals, and good community engagement.  I was told they will welcome you back into their home  on your release from custody.  That would give you not only parental support, the encouragement of people who love you and still care for you, but it will give you stable accommodation, a life with a routine that does not revolve around drugs, a drug milieu and drug using people, and exposure to pro-social behaviour, people, and attitudes.  Most people do not have that when they are in the position you are in before the court, so it is a significant advantage. 

46You are clearly intelligent, and you have had that history of gainful employment that I have referred to.  You do not struggle to live with a mental illness, a psychiatric, psychological or personality disorder, a mental impairment, or an acquired brain injury.  You are a mature adult, an age at which many describe as the prime of life.  You are capable of  learning and reflecting and changing your life and attitudes if you wish to.  But it is up to you.

47The most I can do is recommend that you be given the opportunity to participate in rehabilitation focused programs in custody, and to structure the sentence to allow the opportunities for supervision on parole, should you be offered that opportunity.  That is what I propose to do.

48I also reduce the sentence  not only because of the impact of your time in custody already by reason of COVID and COVID restrictions, those significant restrictions on access to courses, freedom of movement, capacity to move outside your cell to mix with others, and the inability to make your own choices as to how you wish to keep yourself safe, but because, although it is said we are out of the pandemic, the disease is now endemic the disease is still around, and prison populations are at greater risk, and the restrictions on those in prison are clearly greater than for people in the community. Therefore, for all of those reasons, your time in custody to date and your time in custody from now on is going to be more onerous, and that clearly must reduce the sentence otherwise appropriate. 

49In structuring the sentence, I consider that there is in effect a complete overlap between Charges 1 and 2. Charge 1 relates to a course of conduct trafficking up to and including, and by reference to the drugs that were found on your premises on the day of the execution of the warrant.  Charge 2 is a single date trafficking seen against that context that I referred to, but it seems to me it is appropriate to deal with it as part and parcel of that overall business of trafficking, rather than a separate or standalone offence which would warrant cumulation or partial cumulation. 

50As to Charge 3, the possession of cannabis, it was not suggested on the plea, and it would seem sensibly, having regard to the evidence of quantity found and the different places where it was found in the house and in the car, that possession of cannabis was not for a purpose related to trafficking, or some of it in any event.  I make the sentence for that also concurrent with the sentence on Charge 1 and Charge 2.  Again, I see that as part of the business of trafficking in which you were involved. 

51Insofar as any of these substances in the house on the day, the subject of any of those three charges were for your personal use, I note you are not charged with use of any substance. If any of the substances were for personal use, that certainly would not warrant any cumulation of the sentences on Charge 2 or 3 on Charge 1. 

52However, I do propose to order cumulation for the offences of possession of the weapons, because you have prior convictions for weapons offences.  Whilst possession of weapons, particularly a taser, is a common enough concomitant of trafficking, it is a separate type of criminality and warrants separate and additional punishment.  And for the same reasons, because you have prior convictions for proceeds of crime offences, and because whilst it is a common enough concomitant of the business of trafficking, it is a separate type of criminality,  I propose also to make the sentence for the proceeds of crime charge cumulative on the trafficking charges.   

53I will make the orders for forfeiture and disposal sought.  I note that there was no opposition to them. 

54Mariusz Kedzierski, on the three indictable charges and the three related summary offences to which you have pleaded guilty, you are convicted. 

55On Charge 1, the between dates charge of trafficking in a drug of dependence, you are sentenced to be imprisoned for a period of four years. 

56On Charge 2 of trafficking in 1,4-butanediol, you are sentenced to be imprisoned for a period of 12 months.

57And on Charge 3, possession of a drug of dependence, cannabis, you are sentenced to be imprisoned for a period of six months.

58On Related Summary Offence 1, possess a prohibited weapon, you are sentenced to be imprisoned for a period of three months. 

59On Related Summary Charge 10, you are sentenced to be imprisoned for a period of three months. 

60And on Related Summary Offence 12 of dealing in property suspected of being proceeds of crime, you are sentenced to be imprisoned for a period of six months. 

61I direct that the sentences on Related Summary Offence 1 and Related Summary Offence 12 be served cumulatively upon each other and upon the sentence on Charge 1.  That makes a total effective sentence of four years and nine months, and I fix a period of three years and three months as the time that you must serve before being eligible for parole. 

62I declare that you have spent 626 in pre-sentence detention and I direct that that be counted and reckoned as part of the sentence already served. 

63I declare pursuant to s6AAA of the Sentencing Act that but for your pleas of guilty, I would have sentenced you to a term of imprisonment and total effective sentence of six years and three months, and I would have fixed the period of four years and nine months as the time that you would have had to have served before being eligible for parole.