Director of Public Prosecutions v Kyriacopoulos
[2014] VCC 1430
•30 July 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case Nos. CR-13-00355
CR-14-01315
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL KYRIACOPOULOS |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2-5 May, 27-30 May, 23 July 2014 | |
DATE OF SENTENCE: | 30 July 2014 | |
CASE MAY BE CITED AS: | DPP v. Kyriacopoulos | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1430 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K. Doyle for the trial and plea Mr B. Nankin for the sentence | OPP |
| For the Accused | Mr M. Page for the trial Ms S. Thomas for the plea | Leanne Warren and Associates James Harris Lawyers |
HER HONOUR:
Indictment number C1208400.4
1 Michael Kyriacopoulos, on 30 May 2014, on Indictment number C1208400.4, a jury found you guilty of one charge of blackmail and one charge of robbery. These are offences which have a maximum sentence of 15 years' imprisonment.
2 I am satisfied as to the following facts from the trial, consistent with the verdicts of the jury:
3 i) you formed the view that a person called Dzenan Karamehmedovic had stolen an iPad belonging to someone you knew;
ii) on 4 January, 2012, late in the evening, you went to Karamehmedovic's house accompanied by two males, and another male by the name of Dusko Jovic was already there;
iii) in the presence of these men, you were verbally abusive to Karamehmedovic, and demanded that he find and return the iPad or give you something in exchange for it;
iv) Karamehmedovic denied that he knew anything about it, and you forced him to strip off his clothes and sit naked;
v) you told the men who accompanied you to remove the television set, which you said was collateral to be held for the return of the iPad, and the television was removed to your car, while you picked up a telephone and wallet and removed those from the house;
vi) later on the same night, you went to another place where Karamehmedovic was in a garage, and the man Jovic was again present, plus other men;
vii) you made further demands for the return of the iPad, at the same time as Jovic was making his own unrelated demands to Karamehmedovic[1];
[1] In a separate trial, Jovic was convicted of blackmail for his own actions.
viii) after Jovic punched Karamehmedovic, you threatened Karamehmedovic again, including by holding a wrench, and then tapping him lightly on the head with it, and the two of you attempted to drag him out of the garage through a back door;
ix) Karamehmedovic was sufficiently frightened by the behaviour of you and Jovic to escape by slipping out of his upper clothing and running out of the garage through the front roller door; and
x) although Karamehmedovic later supplied you with an iPad, you said it was not the correct one, and you did not return any of his items to him, with the television later being found at a relative's house, and the telephone at your then girlfriend's house.
4 It is clear from the verdict of the jury as to the blackmail that they were satisfied that your menacing behaviour and your demands at his house and at the garage, were intended to frighten Karamehmedovic, and that you knew that your behaviour was not the proper way to reinforce your demand, even if you somehow believed that your actions were justified.
5 It is also clear from their verdict as to the robbery that they were satisfied that you did not genuinely believe that you had a legal right to any item stolen.
6 There are a number of features which make the offences more serious. These are that the victim was treated this way initially in his own home at night, where he was entitled to feel safe; that he was humiliated by you forcing him to sit naked in front of a number of others; and that your continuing menacing behaviour later in the garage was carried out in tandem with another man making demands reinforced by menaces, which heightened Karamehmedovic's fear to such a level that he ducked and slipped out of his upper clothing while the two of you were holding him, and ran through the garage roller door to escape.
7 There is no Victim Impact Statement. Karamehmedovic was not a cooperative witness at trial, and his evidence was given under the law relating to unfavourable witnesses. He did not give as a reason for his lack of cooperation that he was afraid of you, and I am unable to be satisfied that was his reason. However, I can act on the evidence given in the trial by other witnesses, and I am satisfied that at the very least, at the time of the events, he was humiliated by you at his house, and was frightened by you and Jovic later at the garage.
8 I also acknowledge what has been recognised by the courts that:
"Blackmail is an offence that is frequently hard to detect, especially where, as in this case, the perpetrator preys, or attempts to prey, on the fear that his conduct inspires”[2] -
[2] R v Son Vo (unreported, Court of Appeal 14 May 1998) at p4
and:
"It is essential that those who have the courage to report the offence" -
which Karamehmedovic originally did -
"or to give evidence for the Crown know that their efforts will not be wasted and that the offenders will be appropriately punished"[3].
[3] Ibid at p5
Indictment number C1208400.10
9 On 23 July 2014, the day of the plea following the verdicts in the trial, you pleaded guilty to two charges on Indictment number C1208400.10. The first is a charge of possession of a drug of dependence, namely testosterone, which has a maximum penalty of one year's imprisonment and/or a fine of 30 penalty units if the court is satisfied that the offence was not committed for any purpose related to trafficking; or in any other case, the maximum penalty is five years' imprisonment and/or a fine of 400 penalty units.
10 The second charge is one of trafficking a drug of dependence, namely alprazolam, which has a maximum sentence of 15 years' imprisonment.
11 I take into account that you have pleaded guilty to these charges and that you have spared the community the time and cost of a trial or trials. Although these charges were resolved to a plea of guilty only in the days before the plea was to be heard on the trial matters, the prosecutor fairly told me that there was always likely to be a resolution, and so I take that indication into account in your favour. As a result of these factors, the sentences on these charges will be less than would have been imposed if you had been found guilty after a trial.
12 An agreed summary was read out by the prosecutor[4], and I proceed to sentence you on the basis of that summary.
[4] Exhibit A
13 In brief, your telephone calls were intercepted by police and from those conversations, it is clear that you were engaged in the sale and exchange of alprazolam, a drug which is also known by the brand name Xanax (Charge 2 of trafficking).
14 The prosecution are not able to quantify the amount you trafficked over a period of about four weeks. Your counsel submitted that you were both a user and a seller, and the trafficking involved a group of people abusing prescription drugs. It was put that this was at the lower end of the scale. I find that you were trafficking in relatively small amounts by exchanging it with other users.
15 With respect to the charge of possession of testosterone, during a search by police on 16 March 2012, three packets or small boxes of the drug were located in the bedroom of your then girlfriend, where you had asked her to keep them for you.
16 On the question of whether you had these drugs for any purpose relating to trafficking, I accept that a relatively small amount was found, together with a bottle of water described as being "for Injections"[5]. On the other hand, you told a drug assessor for the Court Integrated Services Program in May 2012[6] that you last injected anabolic-androgen steroids[7] three years earlier. If that information provided by you is accepted as true, it makes it more likely that the drugs were held for trafficking purposes. Given your report to the drug counsellor, which outlines your drug history, I have decided that I am not satisfied on the balance of probabilities that you had the packets of testosterone in your possession for personal use. Put another way, I am not satisfied on the balance of probabilities that the offence of possession was committed for any purpose not related to trafficking. As a result, the higher penalty applies for Charge 1.
[5] See Schedule to Disposal Order Item No. C377/12
[6] Part of Exhibit 1
[7] Drugs derived from testosterone.
History of drug use
17 It is appropriate at this point to refer to your history of drug taking. Before I do, I note that you are now aged 27 years, and that you were aged 24 at the time of all of the offending. According to the report of the drugs counsellor[8], you began using Xanax, a benzodiazepine, at the age of 16 years. This continued for seven years until you were arrested in March 2012 and included, at the age of 21 years, bingeing on the drug when you obtained it on prescription from a psychiatrist for anxiety. Your peak use at the age of 23 to 24 years, the time of the offending, was 20 tablets daily.
[8] Part of Exhibit 1
18 You used amphetamine (speed) from the ages 18 to 21 years, using up to one gram a week before you turned instead to using methylamphetamine (ice) and from the age of 23 until your arrest, your use of that drug was up to one gram, three to four times a week. You also used cocaine, MDMA (ecstasy) and anabolic-androgen steroids until aged about 21 or 22 years.
Criminal History
19 You have admitted a criminal history which, for matters dealt with by a court before the offending for which you will be sentenced today, is limited to one conviction for criminal damage in 2010, where, I am told, you damaged the property of an associate with whom you had a disagreement. However, I was properly told by your counsel that since you committed the offences for which you are to be sentenced today, you have been convicted of offences which occurred in 2011.
20 You pleaded guilty to possessing a drug of dependence (amphetamine) and possessing a controlled weapon (a pocketknife, I am told) and the matter was adjourned without conviction, with a payment to the court fund. On another occasion, you were also charged with assaulting a WorkCover investigator, I am told by threatening him, and again the matter was adjourned without conviction with a payment to the court fund.
Personal circumstances
21 I have been told something of your personal history and circumstances. You are of Greek and Greek/Irish heritage, born and raised in the Dandenong area. Your parents and your two sisters are law-abiding, responsible members of the community, and you have been supported by various family members throughout your cases in this court. You completed VCE at Hampton Park Secondary College, but chose not to undertake tertiary studies, a choice which you now apparently regret. I pause to say to you that as you are only aged 27 now, it is not too late to recommence studies if you really want to.
22 At school, you became friendly with some of the people who have featured in the series of cases in which your three matters were involved.[9] Unfortunately, there were negative influences and I am told that your drug use commenced with some of these people, and escalated as I have described above, culminating in the spate of offending from mid-2011 to March 2012.
[9] There were a number of separate trials held in respect of five accused.
23 There was another reason put forward by your counsel for your escalating drug use. In 2009, you suffered a back injury in a car collision in which you were a passenger. The pain from the herniated disc[10] prevented you from working, and the pain, in association with your unemployment, apparently led to increased use of prescription and illicit drugs. I am told that it was in this context that you received the prescriptions for Xanax for anxiety from a psychiatrist, but you had already been abusing that drug and used the prescription drug in binges. There was no material provided regarding this attendance on the psychiatrist, although there was a reference in the final progress report for the Court Integrated Services Program[11] to a psychiatrist as a source of information, who I am told by your counsel was the psychiatrist who prescribed the Xanax.
[10] See Exhibit 12 - Radiology Report dated 9 July 2012
[11] Exhibit 3
24 After your arrest on 20 March 2012, you were on remand for 46 days until you were bailed from the Magistrates' Court under the Court Integrated Services Program. Here, you worked with a case manager and a drug counsellor, who each provided reports to which I have already referred[12]. According to those reports, you were to be supported with regard to illicit drug use, mental health, and employment and training.
[12] Exhibits 1, 2 and 3
25 As at the final progress report in September 2012, you had been drug free from the date of arrest with plans to continue drug counselling; you had been assessed for an acquired brain injury but no symptoms were discernible; you had been psychologically assessed and then linked with a psychologist to commence later in September 2012, and you had secured voluntary work. The Court Integrated Services Program was then removed as a condition of your bail. Your counsel relied on your progress through that program and since then as a good indication of your prospects for rehabilitation. I will return to this aspect in a moment.
26 Returning to your background, following school, you worked as a pastrycook for about three years, as well as in a warehouse, and then for a carpet retailer until 2009. You have not worked in paid employment since receiving the back injury, but you have undertaken unpaid work with two businesses involving animals, while you were on bail.
27 I received references from the owners of these businesses.[13] One involved working with racing horses, and the other involved racing greyhounds. You worked at the stables for about three months from around December 2012, and the director of the company owning the stables indicated he was prepared to put you on as a paid employee in future. You have worked twice a week at the racing kennels over a period of time, and you now have aspirations to run your own dog training business, once you have completed the sentence you will receive today.
[13] Exhibit 6 and Exhibit 10
28 While on bail, you also completed four to six weeks of training at the Centre of Vocational Education Pty Ltd and received a certificate in Civil Constructions‑Plant Operations[14], which apparently entitles you to obtain a "white card" to work in the construction industry.
[14] Exhibit 13
29 I received a number of references from family and friends, which show that the person they know is far from the threatening man engaging in standover tactics in January 2012, and a man who has been a long‑term high‑level drug abuser. Having said that, in fact your parents and your grandmother describe the change in you since you were bailed in May last year, which shows their recognition that things were not good before then. You are described as having turned your life around, and as using the time since you were bailed to spend more time with the family and to care for ill family members, including your uncle and your grandfather. The references confirm that in your endeavours to remain drug free, you have been looking after your health, and filling your time with unpaid work, and employment training towards certification, and even taken an interest in your grandparents' Christian faith.
Rehabilitation
30 With respect to your rehabilitation, I note that you did not continue with drug counselling, nor pursue the arranged psychological counselling after the Court Integrated Services Program was no longer a condition of your bail.
31 Despite this, it was submitted that you have not used drugs since you were arrested, whether in or out of custody, which is a period of about 28 months; you have obtained interests and qualifications to enable you to consider at least two employment paths in the future; your criminal record is minimal; and you have the support and love of family and friends.
32 On balance, I am satisfied that the chances of your rehabilitation are quite good. Your counsel submitted that as this is your first time in prison, other than being on remand for these matters, and you are still relatively young at age 27, that you should receive a sentence which gives you hope for your future to continue your rehabilitation, with release within months, rather than years.
Deterrence
33 As well as those matters personal to you to which I have referred, I must also take into account that my sentencing of you must seek to deter others from offending in the ways that you did, which is known as general deterrence, which is a major sentencing consideration in blackmail offences. My sentence must also seek to deter you from reoffending, known as specific deterrence, although I recognise that you have already reflected on your offending behaviour and seek to avoid that behaviour in future.
34 I must also consider the question of protection of the community from you and bear in mind the likelihood of your reoffending, which I find is a low to medium risk, a risk that is lessened if you remain free of drug abuse.
Delay
35 Finally, I accept that there has been some delay in your cases being finalised. Your trials[15] were in a series of other trials, not all of which you were involved in, but which were listed to be heard one after the other. As a result, your matters have been heard later than might otherwise have been the case, and I take that delay into account in your favour.
[15] Kyriacopoulos was acquitted in a second trial, heard with a co-accused.
Ancillary orders
36 The prosecution applied for the retention of an intimate forensic sample previously taken from you. You have not opposed that application and as it is in the interests of justice to make the order and the seriousness of your offences warrant the making of the order, I have signed it.
37 The prosecution also applied for disposal of a number of items. You have not opposed that application and I have signed that order.
Findings
38 Your counsel conceded that the blackmail offence is "very unpleasant, serious and humiliating", although it is confined to one day, and overlaps with the robbery. In all the circumstances, I have no alternative but to impose a sentence of imprisonment in respect of these offences. As these events were confined to one night, and the prosecution properly concedes that there is considerable overlap between the offences, with the same acts relied upon as the menacing behaviour for the blackmail and the threat of force for the robbery, there will be some concurrency between the sentences to be imposed.
39 In respect of the drugs charges, while they could have been dealt with in the Magistrates' Court if they were the only charges you faced, they are charges for which I have decided there is no alternative to a term of imprisonment. Because of the need to ensure that the total sentence appropriately reflects your criminality, there will be some concurrency between the two Indictments as all the offending occurred in the same period of time. Stand up please, Mr Kyriacopoulos.
Sentence
40 You are convicted and sentenced as follows:
41 On Indictment number C1208400.4:
42 Charge 1 – Blackmail – two years 10 months' imprisonment
43 Charge 2 – Robbery – 16 months' imprisonment
44 Charge 1 on this indictment is the base sentence. I direct that four months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. That makes an effective sentence of imprisonment of three years two months on this indictment.
45 On indictment number C1208400.10:
46 Charge 1 – Possession of a drug of dependence – three months' imprisonment.
47 Charge 2 - Trafficking a drug of dependence – 10 months' imprisonment.
48 I direct that one month of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 2. That makes an effective sentence of imprisonment of 11 months on this Indictment.
49 I direct that four months of the sentence imposed on Indictment number C1208400.10 be served cumulatively on the sentence imposed on Indictment number C1208400.4. This makes a total of three years six months' imprisonment in respect of all offences for which you are being sentenced today.
50 I direct that you serve a minimum term of two years before becoming eligible for parole.
51 I declare that you have served 107 days in pre-sentence detention, not including today, and these are to be deducted administratively from your sentence.
52 I have signed the retention order and the disposal order.
53 If you had not pleaded guilty to the charges on Indictment number C1208400.10, but been found guilty of these drug offences after a trial, the total sentence I would have imposed on those charges alone is two years' imprisonment with a minimum term of 12 months.
54 Nothing further?
55 MR NANKIN: No, Your Honour.
56 HER HONOUR: Just take a seat, Mr Kyriacopoulos, and I will just sign these orders. Thank you. Mr Kyriacopoulos may be removed.
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