Director of Public Prosecutions v Lekkas
[2024] VCC 294
•14 March 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01393
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROSS LEKKAS |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 February 2024 |
| DATE OF SENTENCE: | 14 March 2024 |
| CASE MAY BE CITED AS: | DPP v Lekkas |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 294 |
REASONS FOR SENTENCE
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| Subject: | CRIMINAL LAW |
| Catchwords: | Sentence – traffic commercial quantity of drug of dependence – traffic drug of dependence - possess drug of dependence – commit indictable offence whilst on bail – contravene conduct condition of bail – possess fraudulent documents - plea of guilty – rehabilitation – Drug and Alcohol Treatment Court |
| LegislationCited: | Sentencing Act 1991 (Vic) ss 6AAA and 18(4) |
| CasesCited: | |
| Sentence: | Drug and Alcohol Treatment Order, custodial part of 36 months |
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Fleming | Office of Public Prosecutions |
| For the Accused | Ms N. Vermezovic | Markotich Lawyers |
HIS HONOUR:
1Ross Lekkas, you have pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence (Charge 1), for which the maximum penalty is a term of imprisonment of 25 years; one charge of trafficking in a drug of dependence (Charge 2), for which the maximum penalty is a term of imprisonment of 15 years; and one charge of possession of a drug of dependence (Charge 3), for which the maximum penalty is a term of imprisonment of one year.
2You have also pleaded guilty to Related Summary Charge 7, which is committing an indictable offence whilst on bail, for which the maximum penalty is a term of imprisonment of three months, and that is a rolled-up charge; Summary Charge 8, contravening a conduct condition of bail, for which the maximum penalty is three months' imprisonment; and Summary Charge 16, possession of fraudulent documents, for which the maximum penalty is two months' imprisonment or the appropriate financial penalty.
3Tendered on the determination hearing as Exhibit 1 was a summary of prosecution opening, which set out the agreed facts of your offending. In brief, they are as follows.
4On 14 September 2022, the building manager at your residential address in St Kilda found a brown cardboard box in your carparking space. Inside that cardboard box were several plastic bottles with a crystal substance inside. Police were notified, and preliminary testing revealed the bottles contained 1,4-butanediol. In total, eighteen 500 millilitre bottles were discovered, amounting to 8.9 kilograms of 1,4-butanediol, (Charge 1).
5Later that day, police executed search warrants at your apartment, and you were arrested. During the search, police seized a number of items, including crystalline rock, a plastic bag, glass beaker and cup containing a crystalline substance, which in total amounted to 24.1 grams of methylamphetamine (Charge 2). They also found nine diazepam Valium tablets and nine and a half alprazolam tablets, stamped Xanax, (Charge 3).
6Your mobile phone contained a number of conversations on an encrypted application involving detailed negotiations for the sale and purchase of drugs.
7On 26 September 2022, police executed a search warrant at a storage unit belonging to you on Little Collins Street. Police found a false registration plate, XQH 500, and a Victorian driver's licence laminate photo sheets containing your image. This, in addition to the false Victorian driver's licence found at your St Kilda premises, constitutes Summary Charge 16.
8At the time of your offending, you were on two counts of bail for unrelated matters entered into on 26 May 2022 (Summary Charge 7). It also emerged that you had been residing at an address contrary to that set on your bail conditions, (Summary Charge 8).
9Following your arrest, a record of interview was conducted on 15 September, during which you answered 'no comment' to the majority of questions and allegations put to you, as of course was your right. You were then remanded in custody. On 8 November 2022, you were granted bail and placed on the BailSafe program, and you have remained on bail since that date.
10The matter was committed to the County Court on 10 August 2023 following a contested committal. Resolution discussions commenced. The matter resolved at a case assessment hearing on 10 November 2023, and on 8 December 2023 it was adjourned into the Drug and Alcohol Treatment Court for a determination hearing which concluded on 8 February 2024. I accept, as does the prosecution, that yours was an early plea although certainly not a plea of guilty entered at the earliest opportunity.
11Exhibit 3 on the determination hearing was a case management assessment report from Ms Griffin-Achmad dated 16 January 2024. Exhibit 4 was a clinical advisor assessment report dated 12 January 2024 authored by Mr Harry Howe. I also received letters from your mother, (Exhibit 10RL); your uncle, (Exhibit 9RL); and your then employer, (Exhibit 8RL); an old report from Mr Jeffrey Cummins, clinical and forensic psychologist, dated 8 March 2018 and prepared for your first court appearance, (Exhibit 11RC). For completeness, I received urinalysis screens; CISP assessments; a report from Karly Doyle, AOD counsellor, detailing your recent engagement with her, (Exhibit 7RL); and your criminal record. Taken together, these reports and materials identified your personal narrative, your substance use and criminal history and, where appropriate, identified treatment recommendations.
Personal Circumstances
12As to your personal circumstances, you were born in February 1988, one of a sibship of three, and you are now 36 years of age, and you were 34 at the time of this offending. You grew up in the Thornbury area of Melbourne. Your father worked in car sales, and your mother was an administrator. None of your immediate family have had any interaction with the criminal justice system, nor have they experienced substance use or mental health issues.
13Your parents separated when you were nine years of age, which is perhaps the only event of significance in a somewhat unremarkable upbringing. You report no physical or sexual abuse in your family of origin, although you have described your father as emotionally abusive and somewhat manipulative. You have a history of good physical and mental health. I do note a childhood diagnosis of asthma.
14Following your parents' separation, your father moved to Queensland where at various times you have also lived. You left school after Year 12, and you describe yourself as an average student. By this time, your substance use, both of drugs of dependence and alcohol, had already become problematic. You began casual employment and then completed an apprenticeship in roof plumbing and worked in that trade firstly with your brother, and then whilst living in Queensland, set up your own business working both in Queensland and New South Wales.
15In 2013, when in Queensland, you became engaged to your then partner, Adrianna. You described to Mr Cummins how:
I got back into drugs up there. It was the stress. It was the fact I didn't have any support. It was the fact that me and Adrianna were fighting. It was the fact that I take on everyone else's problem. Some of the boys I was employing were smoking ice, and that's how I got back into the ice. I was earning really good money, and I started spending a lot of this money on drugs.
16Your relationship ended, and you reached out to your father, who brought you back to Melbourne in late 2016. After a short period of abstinence and a falling out with your father, in your own words, 'I just got more into drugs, and also things just fell apart'.
17From this time on, your life was determined by your increasing drug use and related offending. Your criminal history is consistent with such a personal narrative. In March 2018, you were placed on a community corrections order of 15 months' duration for offences including trafficking methamphetamine, proceeds of crime, possession of various drugs of dependence and poisons and weapons, driving and Bail Act contraventions. That order was breached, it was varied, and it was breached again.
18Since that first appearance in front of the court, you have been dealt with by means of immediate terms of imprisonment and further community-based orders for similar offending, including trafficking of drugs of dependence, driving, theft, dishonesty and deception offences and indeed further Bail Act contraventions. Of concern, Charges 1 and 2 on this indictment represent your fourth and fifth conviction for trafficking drugs of dependence since 2018, and Charge 1, your first conviction for trafficking in a commercial quantity.
19Whilst, of course, you do not fall to be dealt with again for matters in respect of which you have already been sentenced, your prior criminal history is relevant to my assessment of the need in your case for specific deterrence, protection of the community from you, your moral culpability and an overall assessment of your prospects for rehabilitation.
20As to your substance use history, (see Exhibit 4), you first began using alcohol at the age of 16, ceasing regular use of alcohol at the age of 20. You notice, however, that your alcohol consumption has increased since you have been on bail, drinking up to a bottle of wine a night.
21You first used cannabis at the age of 14, you became a regular user by the age of 16, and you ceased regular use of cannabis at the age of 21. You were introduced to MDMA at the age of 17 and then to methamphetamine at the age of 18. You quickly became a daily user of methamphetamine, and whilst acknowledging significant periods of abstinence – including, I note, one period of five years – you identify methamphetamine as your primary drug of concern.
22At the time of your arrest for the index offending, you report smoking up to three and a half grams of methamphetamine per day. You report that, 'Smoking ice was basically all I did'. You have never been an intravenous user. At the time of Mr Howe's assessment, in December 2023, you had been abstinent from methamphetamine for a period of 15 months, which on any view is a significant achievement. You have never used heroin although you report using illicit buprenorphine when in custody in 2019. It seems that any withdrawal symptoms from that buprenorphine use when you were back in the community was masked by your immediate return to methamphetamine upon your release.
23You admit occasional use of benzodiazepines, Lyrica, ketamine and hallucinogens, but reported no concern in relation to those substances. You say that having seen the effects of GHB on others, you have not used it for a very long time. I note that Charge 1 relates to you dealing, trafficking, in a commercial quantity of 1,4-butanediol, which is another form of GHB.
24You reported to Mr Howe a past diagnosis of depression in 2017 but did not pursue any counselling options, and I note Mr Cummins' conclusion in Exhibit 11RC, that you did not at that time meet diagnostic criteria for any psychiatric disorders apart from your substance use disorder. You also reported past problematic gambling, particularly after your return to Melbourne where you were spending up to $2,000 a day in 2017 at the pokies. You did receive a lifetime ban from Crown Casino. You deny any problematic gambling in the past 12 months.
25Mr Howe noted your AOD engagement with Ms Doyle (Exhibit 7RL), your engagement with the BailSafe program, your past engagement with CISP bail in 2020 and a period of residential rehab, also in 2020. You reported that your primary goal was to remain sober and to avoid relapse. You frankly admitted that sometimes you are tempted, and the urges are still there. Such honesty impressed me. You want to strengthen your connections with peers whom you consider to be safe in order to support your recovery, and in that you demonstrate, in my view, a realistic view of the challenges that lie ahead for you.
26Mr Howe is of the opinion that at the time of the index offending, you would have satisfied diagnostic criteria for a stimulant use disorder which was severe in nature and currently in sustained remission. Further to that, the treatment and supervision component of a DATO would be an appropriate intervention, with no significant concerns regarding your capacity to participate in such an order. He then proceeded to set up treatment and program recommendations.
27Your account of the index offending that you gave to Ms Griffin-Achmad in her report, Exhibit 3, was:
Same as always. Got an offer to start dealing. A close friend at the time came to me, gave me an opportunity. I was scraping by, and I just took it.
28Ms Griffin-Achmad noted some offence minimisation on your part:
With regard to my offences, I kind of go easy on myself. I know it's not me; it's the substance use and not profiting off people's addictions. I'm worse than everyone else. I did a lot of enabling.
29Now, there is clearly work to be done in leading you to understand the impact of your offending on the community at large. She also noted your strong family support, a secure family home in which you can live, your positive goal setting and your self-report of having already put in boundaries around people who are not helpful to your recovery.
30Of some concern to the court is your current intimate relationship with a partner who, I am told, uses drugs of dependence recreationally. You have told the court that you do not see that person when they are
substance-affected. You will need to be monitored and supported in maintaining those boundaries.31Ms Griffin-Achmad concluded:
Mr Lekkas presents with strong family connections, who provide prosocial support. Likewise, he has demonstrated capacity to engage in employment, and whilst on bail, he identified several prosocial recreational activities and interests as well as stable and flexible employment.
32Her recommendation was that you were suitable for a drug and alcohol treatment order and that, exceptionally, you should be permitted to work during phase 1.
33The particular purposes of a drug and alcohol treatment order are:
(i)To facilitate the rehabilitation of the participant offender by providing a judicially supervised, therapeutically oriented and integrated drug and alcohol treatment and supervision regime;
(ii)to take account of the offender participant's drug or alcohol dependency;
(iii)to reduce the level of criminal activity associated with drug or alcohol dependency; and
(iv)to reduce the participant's health risks associated with drug or alcohol dependency.
34Now, Ms Vermezovic, learned counsel on your behalf, submitted that such a disposition was an appropriate one in the circumstances of your offending and your own personal circumstances. Ms Fleming, on behalf of the Director, accepted that it was open to the court to sentence you to a drug and alcohol treatment order, having regard to all applicable sentencing principles and all of the circumstances of the case.
Objective Gravity
35Mr Lekkas, those of us who sit in the criminal courts day after day are aware of this simple truth: drugs are tearing the heart out of our community. We are losing generations, particularly to methamphetamine, and those who participate in this evil trade can expect to be severely punished if and when they come before the courts.
36For many people, what might start out as a fun Saturday night, what might be regarded as a recreational consumption that can be controlled, can quickly spiral into the horrors of addiction, and in that horror, many lose everything, and some their lives. Your own lived experience must show you how close you have come to losing everything.
37You, however, retained the positive support of your family. In that you are truly fortunate, as many who come in front of this court facing similar charges as yourself stand completely alone, either because their families can no longer bear the pain of watching their loved one succumb to addiction or because all bridges have been burnt. Your uncle is here today for you.
38Trafficking in drugs of dependence is serious offending as is clear from the maximum penalty which Parliament has seen fit to impose. Quantity, role, duration of offending and motivation for involvement in the offending are all important indicators of offence seriousness.
39Yours, I note, are single-date charges. However, it is clear from all of the material in front of me that when offered the opportunity to traffic, you quite simply took it. You were not destitute although you might have been what you describe as scraping by.
40In making that decision, you decided to profit from the pain and dependence of others. Such a decision evidences how completely you have become immersed in the drug world, where actions are driven by just crude
self-interest. Whilst your trafficking may have enabled you to fund your own habit, it is also clear that you were gaining additional material benefit. You well knew what you were doing was wrong. You have no history of childhood trauma or deprivation upon which to rely, and I find your moral culpability – that is, the degree to which you can be held responsible for your actions and for their consequences – to be high. Further, this was offending that was aggravated by the fact that you were on not just one but two undertakings of bail.
General principles
41In sentencing you, Mr Lekkas, I must have regard to a range of different factors. I must give effect to the principle of general deterrence, that is, sending a message from here out to the community at large to deter others from behaving as you did. I must also consider the need for specific deterrence, which is to deter you from any repeat of such offending. As I have indicated, you have now had five convictions for trafficking drugs of dependence, and you are still a relatively young man at the age of 35. I must consider, therefore, the need to protect the community from you. I must express the community's denunciation of your conduct, taking into account the effect of your crimes upon the community. I must have regard to current sentencing practices, statutory maximum penalties, and ensure as far as possible that you are rehabilitated and then reintegrated into society.
42So in short, taking all of that together, I must try and balance your personal circumstances with the circumstances of your offending, and I must also pass no greater sentence than is necessary in all the circumstances of the case as I find them to be. Now, those sentencing purposes are all contained in an Act of Parliament, s5(1) of the Sentencing Act, and they are all still enlivened.
43General and in particular specific deterrence and the need to protect the community from your continued offending loom large in this sentencing process. However, if the court is considering making a drug and alcohol treatment order, then your rehabilitation, and the protection of the community which can be achieved through your rehabilitation, has greater importance than those other sentencing purposes.
Findings
44On all the material in front of me, I am satisfied on the balance of probabilities that you have a substance dependency, that your dependency contributed to the commission of the offending in front of me, that otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than four years, and that you are not charged with offending nor subject to any order that would make you ineligible for a drug and alcohol treatment order, and lastly, that it is appropriate in all of the circumstances of the case to make such an order.
45My reasons are: firstly, your early plea of guilty, which brings with it the practical benefit of saving the community the time and the expense of the trial and also indicates a willingness to facilitate the course of justice. It may, only time will tell, be an indication of genuine remorse on your part.
46I also have regard to your prospects of rehabilitation, in respect of which, there are substantial grounds for optimism, and that is on the basis of your past proven work ethic; your established period of 18 months abstinence, which is a significant achievement that deserves to be recognised; and your relatively late engagement in the criminal justice system. You did not start coming in front of the courts until 2018 when you were just heading up to your 30th birthday.
47I have regard to your strong and continued family support and your developing insight. There is still work to do, but your candid recognition of the need for ongoing support and that you sometimes have urges which are sometimes quite strong is a positive factor.
48You are seeking an opportunity to continue your rehabilitation and build on the work that you have done, and I am prepared to provide you with that opportunity.
Sentence
49On Summary Charge 7, you are convicted, and you are sentenced to a term of imprisonment of 35 days.
50On Summary Charge 8, you are convicted and sentenced to a term of imprisonment of 30 days.
51I am ordering that 15 days of the sentence on Summary Charge 8 run cumulative to the sentence on Summary Charge 7, and that makes a total effective sentence of 50 days. That is time served.
52On Summary Charge 16, I am imposing a $600 fine, and I am directing that matter to Fines Victoria.
53On Charges 1, 2 and 3, you are convicted and placed upon a drug and alcohol treatment order.
54A DATO has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts, which are as follows.
55The core conditions, which are that:
(a) you must not commit, whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;
(b) you must attend Drug Court when required by the Court to do so;
(c) you must report to the Melbourne Drug Court House within two clear working days after the Order is imposed;
(d) you must report to and accept visits from members of the Drug Court;
(e) you must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;
(f) you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;
(g) you are not to leave Victoria without the permission of the Drug Court; and
(h) you are to obey all lawful instructions from the Drug Court Team.
56The core conditions will operate for 24 months, or until further order.
57And, the program conditions.
58The second part of the DATO is a custodial part and that custodial part is 36 months' imprisonment.
59Pursuant to s 18(4) Sentencing Act 1991 you have served 56 days of Pre-Sentence Detention.
60Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, a total effective sentence of four years and six months imprisonment, with a non-parole period of three years and two months would have been imposed.
61Now, you are also at this point waiving all rights of confidentiality in communications between the Drug Court on the one hand and on the other hand, all treatment providers, all Government agencies, authorities and Departments. Do you understand what you are doing, Mr Lekkas
62OFFENDER: Yes
63All right, now I am going to ask you a question, Do you consent to being placed on a drug and alcohol treatment order?
64OFFENDER: Yes
65Ms Vermezovic, no issue with the forfeiture order and the disposal?
66MS VERMEZOVIC: No issue, Your Honour.
67HIS HONOUR: All right. I am going to sign those now.
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