Director of Public Prosecutions v Kotsifas
[2014] VCC 860
•4 June 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00382
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW KOTSIFAS |
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JUDGE: | Her Honour Judge Lawson | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2014 | |
DATE OF SENTENCE: | 4 June 2014 | |
CASE MAY BE CITED AS: | DPP v Kotsifas | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 860 | |
REASONS FOR SENTENCE
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Subject: Criminal sentencing - possession of an unregistered general category handgun - possession of a drug of dependence - Community Corrections Order imposed.
Catchwords:
Legislation Cited:
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Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | P. Pickering | Craig Hyland, Solicitor for the Office of Public Prosecutions |
| For the Defendant | R. Gipp | Melbourne Legal Chambers |
HER HONOUR:
1 Mr Kotsifas, I will be sentencing you now. The sentencing remarks do go for a little while, and then I will talk to you about the Community Corrections Order at the end.
2 Andrew Kotsifas, you have pleaded guilty to one charge of possession of an unregistered general category handgun, namely, an MAB model E semiautomatic Colt pistol, and five charges of possession of a drug of dependence, one charge relating to testosterone, charge 2. Charge 3 relates to cannabis L; charge 4, aprazolam; and charge 5, nandrolene; and charge 6, methandione.
3 In addition, you’ve pleaded guilty to five summary charges transferred pursuant to s.145 of the Criminal Procedure Act 2009. They are charge 6, possess cartridge ammunition whilst not being the holder of a licence under s.124 of the Firearms Act 1996; charge 9, possession of prohibited weapons without an exemption under s.8B or an approval under 8C of the Control of Weapons Act 1990, and that concerned one black‑coloured flick‑knife, one silver‑coloured flick‑knife, a dagger, a Harley‑Davidson‑branded flick‑knife and a stainless steel dragger; charge 12, possess schedule 9 poison, namely, tamoxifen, contrary to s.36B of the Drugs, Poisons and Controlled Substances Act 1985; charge 14, possess accoutrements supplied to a member of the police force without satisfactorily accounting for such possession, namely, a police wallet and a police identification badge, contrary to s.97 of the Police Regulations Act 1958; and charge 15, possess controlled weapons without lawful excuse, namely, a Wahl white‑handled straight razor and a Smith & Wesson hunting knife, contrary to s.6(1) of the Control of Weapons Act 1990.
4 The crimes are serious, and that is reflected in the maximum penalties that are prescribed by our Parliament for those crimes. In relation to possession of a handgun, it is 600 penalty units or seven years imprisonment; possess of drug of dependence, 30 penalty units or one year. In relation to the cannabis charge, it is accepted it is a small quantity, and the penalty is 5 penalty units; possession of ammunition, 40 penalty units; possess controlled weapon, 120 penalty units or one year imprisonment; possess police identification, 100 penalty units; and possess schedule 9 poison, 10 penalty units.
5 In addition, you have admitted your past criminal record. There are three prior court appearances spanning the period from 5 September 2006 to 16 January 2009. Your convictions are predominantly for driving offences. There are four convictions for drive whilst disqualified. There is one conviction of particular relevance for me today, and that is the one for possession of a prohibited weapon without approval or exemption; one conviction for criminal damage and an unlawful assault that relates to you smashing a car window with a piece of wood and threatening the occupant, your former girlfriend.
6 Of some importance is the fact that you do not have any prior criminal convictions for drug use or possession of firearms. In the past, you have been dealt with by way of fines, both with and without convictions, and in January of 2009, a wholly suspended sentence of three months was imposed, with an operational period of 12 months, in relation to some driving offences. You completed that satisfactorily. There are two other summary matters that are pending, and it is intended that you will plead guilty to those charges. They relate to offending that postdates these current matters. I note you were on bail for these matters when you committed the further matters.
7 On 24 January 2014, you were intercepted by police whilst driving. At that time, you were smoking cannabis L, and a small amount of the drug was found in your vehicle together with some anabolic steroids and some .22 calibre ammunition. Police obtained and executed a search warrant at your home on 20 February 2014, where they found a small amount of cannabis L, less than two grams, and a number of vials of steroids and some Viagra that you had in your possession without prescription.
8 Mr Gibb, your counsel, explained to the court in the past that you had used steroids, and you needed a drug to counteract the build‑up of steroids in your system, and, therefore, you were using the drugs that you had obtained illegally for that purpose: to reduce the effects of the steroids on your system and to assist with weening yourself off steroids.
9 These current matters arose in the context of a police investigation into a drug dealing ring in the bayside area. That led to the identification of your co‑accused, Shane Barwick. Barwick, aged 30, lived next door to you. He lived with his grandparents at 22 Reserve Road, Beaumaris. He is a long‑term friend.
10 On 13 August 2013, Barwick was arrested at the Concourse shopping centre, Beaumaris, whilst seen to be carrying out a drug transaction. When he was arrested, police searched his home, and there they found large sums of money, weapons and drugs, including ecstasy, cannabis L, digital scales, a safe, cameras, surveillance equipment, money‑counting machine, fireworks and property believed to be the proceeds of crime.
11 That same day, police executed a search warrant at your home and located the following items in your bedroom: a locked suitcase containing an estimated 1992 ecstasy tablets in plastic bags and a small amount of other tablets containing ecstasy, and two white tablets containing methorphan, a Kinchrome‑brand case containing a MAB‑branded model E automatic pistol and a Victoria Police wallet and badge, an imitation .45 calibre auto‑loading pistol in the bottom drawer of the bedroom cupboard, ammunition, mixed rifle and handgun rounds, a packet of tamoxifen tablets, vials of testosterone, vials of anabolic steroids and a blister pack of alprazolam tablets, that also is known as Xanax.
12 Police located various prohibited weapons in the house, including a double‑edged dagger, a flick‑knife, together with cannabis L in a plastic bag. They searched your car and located another dagger, a Wahl straight razor blade and a Smith & Wesson hunting knife. Police later ascertained that some keys held by Mr Barwick opened a lock to the cases from your bedroom that contained the ecstasy tablets and the firearm.
13 You have been charged with charge 1 on the indictment on the basis that you were aware of the contents of the locked case. Barwick had shown you the handgun on a previous occasion. It was accepted that you were looking after the gun on his behalf. There are no charges against you relating to the ecstasy tablets that were found in the locked case in your bedroom.
14 You were taken to the Moorabbin police station and participated in a record of interview where you made admissions concerning the steroids found in your bedroom. You told police they were for personal use. The Xanax tablets, you told police, were to help with sleeping, but you did not have a prescription, and you also told police you used cannabis daily. You made no comment in relation to questions regarding the two locked cases found in your bedroom.
15 Following your arrest, you spent two days in custody. You were then bailed. Your matter then settled at committal mention. Following fingerprint and DNA analysis of the two locked cases that were found in your bedroom, the Crown withdrew all charges and allegations relating to the contents of the black case, and that concerned the ecstasy pills and the two methorphan tablets. You admitted knowledge that you had possession of the other case that contained the handgun, and you were aware of the handgun. It is accepted that you were looking after those items on behalf of Barwick.
16 By way of explanation for your offending, Mr Gibb submitted that you have been involved with body building activities for a large part of your life, and the possession of the steroids was for your personal use only as part of your body building routine. Various steroids assisted you, providing a muscle stimulant, reducing fat and reducing levels of estrogen. Possession of the very small quantity of cannabis L was for your own personal use. You also took the Xanax to help you sleep.
17 The ammunition the police found located in your bedroom did not match the handgun located in the locked case. There was no other firearm located at your premises. The collection of the ammunition, the knives and razors found by police, Mr Gibb submitted, reflected your fascination with weaponry and a desire to collect such items.
18 In formulating the appropriate sentence, I have accepted your explanation for your possession of the variety of drugs found and the various weapons and the circumstances in which you came to have the two cases belonging to Barwick in your possession. Whilst providing a context for your offending, it in no way excuses your offending.
19 I still consider this offending is serious, and the court must emphasise general deterrence in the sentencing disposition that is to be imposed. On behalf of the community, I must formally denounce your behaviour.
20 You are a relatively young man of some 27 years. Your background is unremarkable and, some would say, very privileged. Currently you work as a Migration Agent with your father’s law firm. You were born in Australia and educated to year 11 at Mentone Grammar and completed your VCE at Brighton Boys’ Grammar.
21 You have worked at your father’s law firm since November 2008, initially as a law clerk, and then in June 2010, you completed the Graduate Certificate in Australian Immigration Law and Practice from Victoria University, and since that time, you have held a Migration Agent’s Registration Authority Certificate. You were partway through completing your Bachelor of Law and Arts at Victoria University when you were charged with these offences. You have performed some volunteer work with the Australian Greek Welfare Society in the past.
22 Dr Lester Walton, forensic psychiatrist, reviewed you on 28 April 2014, and his report dated 5 May 2014 states that he did not identify any diagnosable psychiatric condition. He considered you a little prone to anxiety and depressed mood. He did not consider that you were addicted to any drugs and did not consider that you had any alcohol issues. I interpolate at this stage that I query whether he was aware of the nature and extent of your regular drug use from the age of 19 that you have now disclosed in your interview in relation to the Community Corrections Order.
23 Following your arrest and charges for these offences, you have now decided to follow your passion and intend to commence your own business, operating a gymnasium in Moorabbin.
24 I note your parents are very supportive of you. You continue to reside with them, and you also have the support of your girlfriend.
25 In sentencing you, I have had regard to all the matters put in mitigation. You pleaded guilty at the earliest opportunity, and by those pleas of guilty, you have spared the State the cost and inconvenience of a trial, and you have thereby facilitated justice. I accept that the pleas are also some evidence of remorse. You were cooperative with the police and made some admissions in relation to the offending.
26 And, in addition, I have taken into account the various testimonials that were provided to the court from your father, Mr Daniel Trenton, a solicitor at JK Legal, your current girlfriend/partner, Ms Amira Hegazi, and I note that they all confirm the deep regret and remorse that you feel about this offending. They all speak highly of you in respect to your past contributions through work and voluntary work and also your professional attitude.
27 I take into account that one of the impacts of convictions being recorded for these offences will be that you will no longer be able to practise law if and when you complete your law degree. Further, it’s almost certain that your registration as a Migration Agent will be cancelled or not renewed by the Migration Agents Registration Authority.
28 In sentencing you, I have had regard to the fact that you are still relatively youthful, that you did show some cooperation with the police, that you entered an early plea of guilty at the earliest opportunity and you have expressed genuine remorse. I have also had regard to the extra-curial punishment that you will suffer. Following your release on bail for your subsequent offending you have been compliant with the more stringent bail conditions, including curfew, reporting and non-association conditions. It appears, therefore, that you now have some insight into the necessity to comply with court orders and with bail conditions.
29 So, that augers well, in terms of your rehabilitation prospects. Overall, I assess your prospects of rehabilitation as being good, albeit I am still guardedly optimistic. It is dependent on you complying with the Community Corrections Order, and genuinely participating in counselling and treatment to deal with your drug addiction.
30 In sentencing you I must impose just punishment. In all the circumstances I consider that a Community Corrections Order, with a community work component and a condition for counselling and drug education, ought to be imposed. You have been assessed as to your suitability for such an order and found to be suitable. The general risk of reoffending is assessed as being low.
31 Of considerable concern to the court, having regard to the nature of the present charges, and also the subsequent offending, was your history of steroid use. That has been addressed in the assessment and report from Lee Brennan of the COATS RAPIDS Assessor. His report is dated 26 May 2014. He identifies steroids as the main substance of concern. You were previously using steroids approximately every second day since age 19, either orally or intravenously. Cannabis L was identified as the secondary substance of concern, as you commenced using when you were 14. Up until your most recent arrest you were using daily up to a gram of cannabis L.
32 He considers you have displayed a moderate level of insight into your substance use, and you now express a desire for abstinence. He recommended that you attend counselling, consultation and continued care, with a focus on relapse prevention due to ongoing concerns about possible relapse into substance abuse. That can be addressed through community-based counselling services, a condition of your Community Correction Order.
33 I propose to now impose the orders of the court. Could you please stand, Mr Kotsifas.
34 In respect to the five charges on the indictment the formal court orders will be as follows. You are convicted and placed on a Community Corrections Order, the operational period for which is 18 months. There are additional conditions that I impose, and they are that you be under the supervision of a Community Corrections Officer. That you perform 100 hours of unpaid community work, that you undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the Regional Manager.
35 It is apparent to me, from the presentence report that you signed, that the mandatory terms of the community corrections order have been explained to you, and you consent to the order being made by the court. Is that so?
36 ACCUSED: Yes, Your Honour.
37 HER HONOUR: Very well. I will just repeat the mandatory terms. They are that you must not commit another offence for which you could be imprisoned during the time the order is in force, that is, for the next 18 months. That you have to report to and receive visits from a Community Corrections officer. And you must report to the Community Corrections Centre at Moorabbin Community Correction Services within two clear working days from today’s date, that is, by Friday, 6 June 2014.
38 You must notify a Community Corrections Officer of any change of address or employment within two clear working days after the change. You must not leave Victoria without first getting permission to do so from a Community Corrections Officer. You must obey all lawful directions from and directions of a Community Corrections Officer. Such directions may be given orally or in writing. So, do you understand and agree to those conditions?
39 ACCUSED: Yes, Your Honour.
40 HER HONOUR: It is the case if you are ill, or if there are exceptional circumstances, the order may be suspended for a time. And if your circumstances materially alter you may apply for a variational cancellation of the order. In either case you must notify the Moorabbin Community Correctional Services. I recommend that you obtain further legal advice should any of those eventualities occur.
41 I must warn you that if you breach any of the conditions of this order you will be brought back before me. One of the options open to the court is to cancel the Community Corrections Order, and then to resentence you on the original charges. And I may also deal with for the breach, the penalty for which is imprisonment for up to three months. Do you understand the consequences of breaching the community corrections order?
42 ACCUSED: Yes, Your Honour.
43 HER HONOUR: Very well. I will ask that you sign the Community Corrections Order shortly. In respect to charge three, possess cannabis L, on the Indictment you will be convicted and discharged.
44 In respect to the summary charges, I make the following orders. Charge eight, convicted and fined $500. Charge nine, convicted fined $1,000. Charge ten, convicted and fined $100. Charge 14, convicted and fined $500. Charge 15, convicted and fined $500. So, the total fine is imposed of $2,600.
45 I make the disposal order sought, a forfeiture order sought, and the order for the retention of the forensic sample, pursuant to s.464ZFB of the Crimes Act. That was not opposed, and I consider it is in the interests of the community that that be made. Now, I am not sure. Are the orders in the court file? The ancillary orders. Were they in the court file? I think I signed them, but. Very well.
46 I will sign those ancillary orders and forward them on. My associate is not well today. Apparently the orders have been sent to her email address. So, they will be signed. I will just sign the Community Corrections Order. And I will ask that you go down with my associate, Mr Gibb, to get that signed. And, also, do you seek a stay in relation to the fine? If you can get some instructions.
47 MR GIBB: I do, Your Honour. A stay of three months.
48 HER HONOUR: Three months? Very well. I will grant a stay of three months.
49 MR GIBB: Thank you.
50 HER HONOUR: All right. So, Mr Kotsifas, you may be released from the dock.
51 ACCUSED: Thank you, Your Honour.
52 HER HONOUR: Mr Kotsifas, this is an opportunity for you to demonstrate to the court just how genuine you are. This, obviously, has been the catalyst for some change, albeit you hit the bump in the road again with this subsequent offending. But I can warn you, you are facing the prospect of jail in the event that you breach this order. Do you understand that?
53 ACCUSED: I’m aware of that, Your Honour. Yes.
54 HER HONOUR: Very well. You have caused great anguish to your parents, who no doubt are bitterly disappointed by you. You need to find a way of apologising to them and showing to them, too, just how genuine you are. You abused their trust in a very big way, by way of your offending. And, as I said in my sentencing remarks, you have had a very, very privileged background.
55 It is not easy for judges in this position to extend mercy to people, where they have been given such a wonderful start in life. We see reams of people who would be so envious of the exceptional start that you have had in your life. So, please, take this opportunity and make the most of it, and start giving back to the community.
56 But, also, you really do need to find a way of expressing to your parents your real sorrow for the hurt that you have caused to them. It is really difficult for a person in my position to see the anguish that they are going through. And I do not really get the idea from you that you have a full understanding of the hurt that you’ve caused.
57 ACCUSED: I do, Your Honour.
58 HER HONOUR: Very well. Well, you need to find a way of supporting your parents, who have been wonderful to you, and they’ve provided you with a real gift life. Secure home, good family, education. You’ve had a really privileged time. And it’s time for you to reflect on that, and to appreciate that; to start thinking about others other than yourself.
59 I do think one of the real issues in your situation is this steroid use. Long-term steroid use, no one knows what the effects of that are. So, that is another thing that you need to find out further about. It is not just about the counselling. It is about the medical impact. If you’ve got long-term plans with your girlfriend you’ve got to explore all that as well.
60 ACCUSED: Yes, Your Honour.
61 HER HONOUR: Because we see the consequences every day of the effects of drugs. But, in particular, I have seen some very bad outcomes for people who are addicted to steroid use, and it has resulted in them going to jail for long periods of time. So, I hope you will reflect on your behaviour and change.
62 ACCUSED: I will, Your Honour.
63 HER HONOUR: All right. We can adjourn.
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