Director of Public Prosecutions v Lambrou
[2021] VCC 16
•21 January 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00450
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PANTELIS LAMBROU |
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JUDGE: | HIS HONOUR JUDGE BOURKE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 21 January 2021 |
CASE MAY BE CITED AS: | DPP v LAMBROU |
MEDIUM NEUTRAL CITATION: | [2021] VCC 16 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering | |
For the Accused | Mr J. McQuillan |
HIS HONOUR:
1Pantelis Lambrou, you are to be sentenced for one charge of trafficking in the drug of dependence, methylamphetamine, in a commercial quantity. The appliable maximum sentence is 25 years imprisonment. Your crime is a Category 2 offence and thereby comes under the provisions in the Sentencing Act which require a custodial sentence, not one combined with a community corrections order. That is subject to certain exceptions. Such exceptions do not apply here.
2You pleaded guilty before me on 2 December 2020. When interviewed by police on the date of offending and arrest, 19 August 2019, you exercised your right to silence. There was a contested committal on 16 March 2020, after which you were committed for trial, entering a plea of not guilty. The matter was listed for trial in the County Court at one point to be heard in May of this year. The matter ultimately resolved and, as stated, you pleaded guilty on
2 December.3You receive the benefit of your plea of guilty and the level of cooperation that short history of the proceedings shows. Your plea, although not made at the earliest time, has facilitated the interests of justice. I was told and accept the committal hearing contested only the issue of legality of the search of your vehicle which revealed the drugs you trafficked.
4At your plea hearing, also on 2 December, Mr Pickering for the Crown tendered a written Crown opening and chronology of the proceeding. Mr McQuillan for you tendered the letter of drug counsellor Paul McDonald of Refocus Alcohol and Drug Rehabilitation Program dated, 15 July 2020; the letter or report by clinician Amanda Brown of Lamberti Rehabilitation Consultants, dated
26 November 2020, which annexes a letter of self-report by you. He also tendered the forensic psychological report of Carla Ferrari, dated 23 November 2020; a number of letters of character and employment reference; a body of medical notes and histories, which include mainly drug screen testing results between January and November 2020; and a letter and email by therapeutic staff at Odyssey House dated 29 January and 19 February 2020. Mr McQuillan provided written submissions on sentence.5The circumstances of offending are comprehensively set out in the tendered Crown opening which is Exhibit A. My own summary may therefore be shorter. It is also informed, to some extent, by matters put on your behalf. Where necessary, I have applied the principles stated in R v Storey and like cases.
6Shortly after midnight on 19 August 2019, police intercepted the Lexus motor vehicle driven by you in North Melbourne. The reason seems to have been registration irregularity as seen on the Victoria Police database. Observation of your demeanour, of aspects within the car and your failure to identify the registered owner led to a search under provisions of the Drugs and Controls Substances Act. Upon police beginning to examine a camouflaged coloured bag which had been observed within the car, you attempted to escape. You were arrested a short distance away. Within the bag were located two larger parcels of the drug methylamphetamine. Also found then, and later by CIU members, were a smoke pipe, a small ziplocked bag containing methylamphetamine, digital scales and, in your wallet, $660 cash.
7The three amounts of methylamphetamine were as follows.
81. 249.1 grams at 80 per cent pure.
92. 83.5 grams at 79 per cent.
103. 27.8 grams at 81 per cent.
11Your DNA was found on one of the parcels. There were approximately 288 grams of pure drug. The relevant legislative threshold for commercial quantity is 250 grams. Mr Pickering described the quantity here as high street level, but relatively low commercial quantity. The large commercial quantity threshold is 500 grams.
12You are guilty of a one-off occasion of trafficking in the way of possession for sale.
13Mr McQuillan put a number of matters as to the circumstances of the offence. You had a heavy methylamphetamine habit. On this occasion, you had gone to your dealer to purchase $700 worth of the drug, said to be for you and some others. Mr McQuillan put that he, the dealer, offered the arrangement that you transport the parcels of drugs across the city, as part clearly of its commercial distribution. Your reward was to be the drugs you sought free of charge. You did not give evidence before me.
14I am guarded about this explanation. At the very least, you were entrusted with very valuable cargo. I do not find likely the full mitigation of what was put. However, it can be said and I accept that this must be seen as a one-off possession for sale. There is no evidence of sales by you, arrangements (for example, phone communication) by you for that or involvement on other occasions. I accept that your involvement came about in the context of your own drug dependence. Nevertheless, you were trafficking a commercial quantity of a valuable, damaging drug.
15You are a 34 year old man who resides with your parents in Avondale Heights. You have three older sisters to whom you are close. There have been past difficulties in the relationship with your father; however, this has resolved. Your family is supportive of you. After completing VCE, you studied exercise science, engineering, banking and finance, but did not complete university. You have completed a Certificate IV course in financial services. You have worked for the ANZ Bank and in real estate, obtaining a licence in that. For the past five years, you have worked in retail and in management at a Prahran gymnasium. You presently work in administration with a business named Clean Earth Services and at the gymnasium. The tendered letter of your employer at Clean Earth Services speaks highly of you.
16You were badly affected by a serious fatal motor vehicle collision at age 20. You were the driver. In 2008, you were sentenced for dangerous driving causing death and serious injury. It was an 18 month suspended sentence. The person who died was a close friend's sister. There followed strong feelings of grief, guilt and self-blame. The expert evidence states connection of this to increasing drug use over what seems several years. At the time of this offending, you were unemployed, using heavily and in an unhealthy relationship with a fellow drug user.
17That expert evidence is forensic psychologist Carla Ferrari's diagnosis, as then and still active, of major depressive disorder and post-traumatic stress disorder arising out of the circumstances of the earlier motor vehicle accident.
18There is also a diagnosis of a stimulant use disorder. However, you have addressed this since your offence.
19Mr McQuillan placed emphasis on your efforts at rehabilitation and drug use. After a period of remand, you were bailed in November 2019 to reside in residential rehabilitation at Odyssey House. That failed and bail was revoked in February 2020. There was at or before this time, relapse into drug use. However, in January of that year, you had engaged with a drug counsellor Amanda Brown and also with Narcotics and Alcoholics Anonymous. In April, you were bailed to live at the residential rehabilitation program Refocus in St Kilda. As I have earlier identified, there are tendered reports by
Amanda Brown and by Paul McDonald, of the Refocus Program. After successfully completing 12 weeks at the Refocus Program, you continued counselling with Ms Brown who is associated with Lamberti Rehabilitation Consultants. That has continued together with regular urine drug testing. I accept that you have remained drug free.20In late July, you began living with your parents. You have cut yourself from drug using associations. Psychologist Carla Ferrari, diagnosing your post-traumatic and depressive conditions, states that imprisonment will be more onerous for you than those without these conditions. There is, she states, the possibility of relapse or deterioration.
21Your prior criminal history is limited and not relevant to this offending. Apart from the 2008 sentence I have identified, there are other less serious driving related offences, resulting in a May 2012 court appearance. Ms Ferrari states a low to moderate risk of reoffending.
22Trafficking in commercial quantities of drugs such as methylamphetamine is serious offending, as reflected in a high maximum sentence. The commercial distribution of such drugs is highly damaging to our community and its vulnerable. It brings high profit to criminal entrepreneurs. You are not to be seen as such; however, a role such as yours and its risk is an important contribution to the enterprise. The sentencing considerations are moral culpability, deterrence, the need to condemn and proportionately punish are relevant. General deterrence is a particularly important sentencing purpose. The only appropriate sentence is that of imprisonment.
23There are mitigating and moderating factors which are also relevant. They include the following.
1Your plea of guilty and its utilitarian benefit.
2.To some extent, the circumstances of offending and it limits to your role.
3.I find genuine prospects for your rehabilitation. You have a limited criminal history, family support, capacity and capability for employment. The character evidence tendered is positive. It is particularly significant that you have taken the steps towards rehabilitation described.
4.Related to that, Mr McQuillan raised the case of Akoka v The Queen, 2017, VSCA 214. You have spent, since the offending and arrest, 119 days in residential drug rehabilitation. That was 35 days at Odyssey House and 84 days at the Refocus program. Letters or reports have been tendered related to both programs. The Odyssey House letter is particularly short. The level of restriction at either is not made very clear by the evidence. However, I am prepared to find that some relevant restriction and containment were present at both. It was a condition of your bail that you reside at both. In accordance with what is stated by the Court of Appeal, there are two aspects to this; that you have sought to rehabilitate and presently have achieved success in that; Further, you are entitled to credit for that restriction or custody like periods. Your sentence should be moderated to some extent in respect of both aspects.
5.Mr McQuillan also raised the additional hardship of imprisonment under present COVID-19 requirements. Relevant to your case, I accept that there will be anxiety and stress, particularly in the context of your psychological conditions, and lesser supports in the way of contact with family and others. Programs will be to some extent restricted. Freedom of movement restricted a number of ways.
24These are all matters, mostly personal to you, which should go to reduce the length of your sentence. That is, compared to what the seriously objectively seen circumstances of offending and those adverse sentencing purposes I have identified otherwise require. This should apply to both head sentence and particularly to the minimum term I set.
25Mr McQuillan's primary submission was that I impose a sentence not beyond the 174 days of pre-sentence detention you have served. Whilst the matters favourable to you have considerable weight, such a sentence would fail to properly address the seriousness of your offending, the need to sentence proportionately to that and the need to meet general deterrence. There is a need for a head term and non-parole period. Your sentence will be significantly less because of those favourable factors and also what I see to be the particular hardship of return to prison after your movement toward rehabilitation. As stated, your minimum term should be less than what might be seen as usually set. Stand up please.
26I sentence you as follows. On one charge of trafficking a drug dependence in a commercial quantity, you are sentenced to two years and four months. I set a minimum term of 10 months before eligibility for parole. I declare under s.18, 174 days of pre-sentence detention. Are there other matters that I need to - take a seat please. Are there other matters I need to ‑ ‑ ‑
27MR PICKERING: Your Honour, I don't know whether you've done them already, but there were the ancillary orders.
28HIS HONOUR: No I haven't. I wouldn't have done them.
29MR PICKERING: All right, there's the forfeiture and disposal orders I understand have been filed and there's also ‑ ‑ ‑
30HIS HONOUR: They might - yes I'll sign them when they're printed out. Yes, what else is there?
31MR PICKERING: And unless I've missed, the 6AAA.
32HIS HONOUR: Yes, I am sorry, yes. Section 6AAA of the Sentencing Act. I indicate this, that had you not pleaded guilty I would have imposed a sentence of three and a half years, with a minimum term of two years. I make those forfeiture and disposal orders.
33MR PICKERING: Your Honour pleases.
34HIS HONOUR: All right.
35MR McQUILLAN: As Your Honour pleases.
36HIS HONOUR: I will sign those in chambers. People have come here to support Mr. Lambrou and they may briefly speak to him before he is taken into custody. I will remain here whilst that happens.
37MR McQUILLAN: Thank you, Your Honour.
38HIS HONOUR: Mr McQuillan, that will have to be short regrettably. If you would not mind supervising it from an appropriate distance. Mr Lambrou, on a purely personal basis, if I had just had to deal with you in terms of your own circumstances, I would not have imposed the sentence that I did. It is regrettable that other factors have obliged me to sentence you to return to prison. You have achieved a lot and I do truly pass on my best to you and hope that you can move out of the prison system, get parole and continue your rehabilitation.
39OFFENDER: Thank you, Your Honour.
40HIS HONOUR: Thank you. You can take him into custody now.
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