Director of Public Prosecutions v Mavrikis

[2018] VCC 1452

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00927

DIRECTOR OF PUBLIC PROSECUTIONS

v

TONY MAVRIKIS

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 September 2018
CASE MAY BE CITED AS:	DPP v MAVRIKIS
MEDIUM NEUTRAL CITATION:	[2018] VCC 1425

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hards
For the Accused	Mr J. Toal

HIS HONOUR:

1Tony Mavrikis, in 2017, you were renting a factory shed at Unit 10, 442 Sutton Street, Delacombe, a suburb of Ballarat.

2On 27 April 2017, there was a fire at the factory or shed resulting in the Victoria Police being called to the scene. Later, Australian Tax Office investigators were called as the Victorian Police found what they suspected was tobacco product. You cooperated with the ATO investigators during the course of the investigation. What resulted was that you had pleaded guilty to one charge of being in unlawful possession of tobacco leaf contrary to s.17(C)(1) of the Excise Act 1901. It is a Commonwealth Act.

3It is estimated that you were in possession of 300 kilos of tobacco.  You are not licensed to deal in tobacco products in any way.

4Excuse is payable on all tobacco leaf bought into Australia.  It was estimated that the excise payable on the 300 kilograms of tobacco leaf was $231,480.

5The maximum term for the crime of unlawful possession of tobacco leaf is two years' imprisonment or the greater of 500 penalty units of five times the amount of duty as worked out under the regulations.  I was told today that there can be both imprisonment and a fine.

6I will return to the seriousness of the crime shortly.

7You, Mr Mavrikis, are now 47 years of age.  You were raised in Melbourne.  Your parents separated when you were 14.  You then resided with your father.  Your mother died suddenly in 2016.  Your father resides in Ballarat with his new partner and you do not have a lot to do with that family.

8You, yourself have been in a long-term relationship for 25 years and have two children from that relationship, both dependent upon you.  The youngest is only 11.  Your two other older children, independent from you from a previous relationship.

9Despite what I will detail shortly about your physical ill health, you have and you continue to provide for your family.  You are dedicated to them.

10In the brief written submissions prepared by your solicitor in haste, little reference was made to your back problem.  A medical report was handed to me during the plea.  It details the very extensive debilitating problems that you have and it turns out that in respect of your work history, your injured back was revealed at an early age, about 16.  You have been treated for that ever since by the same doctor.

11You first worked after school as a mechanic and had a number of different jobs.  As time went on, you worked around your back problems.  I will outline what the doctor said about your debilitating condition in some detail.  He said this.

"In 1986, a CT scan showed lumbosacral spondylolisthesis, severe central spinal canal stenosis of L4 and L3 to 4, a central disc protrusion and an L3 central spine canal stenosis.

1990, you underwent a decompression procedure of the spine with fusing using metalware and bone graphs.

In 1992, after a fall from a motorcycle, one of the screws holding a metalware fractured and it was found that one of the screws was impinging on the lateral recess.  Therefore, the metalware was removed.  Although the end of the fractured screw could not be retrieved, the fusion remained solid.

In 1996, he were diagnosed as having disc degeneration above the fusion, which is a long-term side effect of the fusion procedure.  He suffered from chronic lower back pain ever since and can have pain down the left leg to the knee.

In 2015, a CT scan on the lumbar spine showed degenerative spinal canal stenosis of L3 and 4 above the fusion.

His analgesic medication consisted of Panadeine Forte from 2000 to 2005.  When this was inadequate, he was prescribed Endone.  Tramadol slow release was released in 2009 and OxyNorm was commenced in 2012.  Other analgesics has been tried, including Norspan patches, Oxycodone and Palexia.  These are all strong opioid analgesics."

12Your doctor, Dr Charles Lewis outlined what your current medication is or medication when he wrote the report in October of 2017.  He concluded with the obvious.

"This is a considerable requirement of analgesia and indicates how severe and persistent his back pain can be."

13It seems that you endeavour to do what you could in terms of work despite your ill health.  That led you to establish a small gift and tobacconist shop in Delacombe.  You told police that you sold the black market cigarettes from the shop.

14Plainly, your poor physical health would make prison harder.  Prison is a brutal place and not easy for anyone, much less so for the infirm.  An important mitigatory matter is your physical disability.  In my view, it means I must consider alternative punishments to that of imprisonment.  Why this important information was not provided to the court and to the prosecution in advance is bewildering.

15Your wife has problems with generalised pain and depression as well.  You have managed her medication it seems.  Your role in the family is important.  If you were imprisoned, you would do prison harder due to worrying about how your family, including your young child, will fair.  It is a matter I have taken into account in mitigation in the overall synthesis.

16I take into account you were cooperative with the investigating authorities and indicated to them aspects of your offending that may not otherwise have been easy to establish or established at all.  In particular, the estimated weight of the tobacco.  The precise weight of the tobacco was not ascertained due to the fire destroying much of it.

17You have limited criminal history and in my view, the matters before the court in 1997 and 2008 are not relevant at all to the matters before me.  Thus, I consider that but for this criminal conduct, you were of good character.  This conduct in possessing the tobacco is out of character and in my view, it is unlikely that you will offend in a similar way or at all in the future.  In my view, your prospects for reform are solid.

18Your plea of guilty means a lesser and indeed different type of penalty is open.  Your sentence will be less because of your plea of guilty and the fact that it was made at an early point.  I accept that you are contrite and never want to be back before the courts again.

19The principal sentencing purpose in relation to this matter is deterrence to others who might be minded to engage in illegal or black market distribution of tobacco leaf.  Thus, by doing so, depriving the Commonwealth of important excise funds to be used for the community benefit.  Indeed as I have said, you yourself are a recipient of Commonwealth benefits.

20The amount of the loss of revenue is significant.  It was over $230,000.

21As mentioned, you yourself have very limited criminal history, none of which is relevant, so there is no need to emphasise deterrence to you.

22I have noted the sentences that have been imposed for this crime in other cases, but most of those sentence, if not all, involved immediate release or short terms of imprisonment and as I said, release on a recognisance.

23Given your poor financial circumstances, a fine in additional to a penalty of imprisonment with immediate release is not appropriate.  In my view, given all the circumstances, what is required here is a sentence of imprisonment, but with an order of immediate release on you entering a recognisance to be of good behaviour.  Ultimately, the prosecutor when apprised of all the material, submitted that a sentence of imprisonment but immediate release on recognisance was the just and appropriate term to be imposed.

24What I intend to do, if you please stand, Mr Mavrikis, is for the crime of unlawful possession of the tobacco and breach of the Excise Act, you are sentenced to six months' imprisonment but you will be immediately released upon entering a two year recognisance release, the bond of which will be a sum of $750.

25It is necessary I explain that to you.  The sentence is a sentence of imprisonment.  However, I order that you be immediately released, so released from this courtroom.  That you will be on a bond to be of good behaviour.  A recognisance release it is called under the Commonwealth legislation.

26So if you are not of good behaviour in the two years, if you commit other offences, then that will breach this bond and you will come back before me for having breached that bond, and the sentence of six months will be relevant to a further penalty.  Do you follow all that?

27OFFENDER:  Yes.

28HIS HONOUR:  All right.  I will put it in old terms that do not apply to Commonwealth cases.  You are on a suspended sentence as it were.  If you commit an offence, then expect the sentence to be imposed and I will assure you if it has not been made clear that a sentence of imprisonment for you is you would never be the same.  Do you understand?

29OFFENDER:  Yes I understand.

30HIS HONOUR:  Had you pleaded not guilty to this offence and been found guilty of it, I would have imposed a 14 month term of imprisonment with an order that you be released after ten months.  You would have done ten months' imprisonment.  Do you understand?

31OFFENDER:  Yes.

32HIS HONOUR:  Thank you.  Is there any further orders that need to be made?

33MS HARDS:  No, Your Honour.  My instructor is just preparing the recognisance for you to sign.

34HIS HONOUR:  Thank you.  You can be seated, Mr Mavrikis, if you wish to.

35OFFENDER:  Yep.

36HIS HONOUR:  A further thing needs to be said.  I have expressed bewilderment at the lack of professional preparation in this plea.  I was told that the accused was is on a disability pension, but he was funding his lawyers himself.  The court, the community and the accused are entitled to expect the proper timely preparation of this important part of the criminal procedure is undertaken by those who are engaged to assist the accused or instructed to appear for them.

37And at a minimum, the County Court practice direction is to be understood and complied with.  It was not in this case until prompts were made upon the solicitors to prepare this order.

38Mr Mavrikis, what I have said in the comments here, the whole sentence will be made available to you if you wish to have it including the comments I made at the end.

39OFFENDER:  Yes.

40HIS HONOUR:  Do with that what you will.

41OFFENDER:  Sorry?

42HIS HONOUR:  Do with that what you wish to.

43MS HARDS:  Your Honour, if I may just hand up the RRO to sign or for your associate to sign.

44HIS HONOUR:  Thank you.

45MR HARDS:  And for Mr Mavrikis.  Thank you.

46HIS HONOUR:  You can come out of the dock there, Mr Mavrikis and come up behind your barrister and in due course, you will be asked to sign a document.  What you will see here is the document you must sign is the recognisance release.  In addition to having the sentence hanging over your head, you also have the $750 that you will forfeit if you breach this recognisance order.  So read that and sign it.

47Mr Mavrikis, you have signed the document saying that this has been explained to you.  You know the purpose and effect and the consequence if you fail this order.  You agree that you are bound by it and you agree you have been given a copy.  The copy will be provided to you shortly before you leave.  Do you understand all that?  All right, thank you.  Is there anything further required?

48MR TOAL:  Your Honour, may I say something in relation to the concluding remarks of Your Honour's sentencing?

49HIS HONOUR:  Certainly.

50MR TOAL:  And sentencing remarks.

51HIS HONOUR:  Yes.

52MR TOAL:  I have prepared just briefly in relation to the material I got and I received a brief at the time when I got it and thereafter, I advised my client accordingly and just want that to be made known to the court.

53HIS HONOUR:  Thank you, Mr Toal.

54MR TOAL:  Because you used ‑ ‑ ‑

55HIS HONOUR:  There's nothing more I can say.  I engaged in - the transcript will reveal the debates that we had or exchanges that we had and the directing you to various things.  You said you got the brief when you got it.  You hold the brief in another matter where the jury is out.  I hope the - we knew that should they - that jury and that judge require you to re-attend at that court, you would have to go back there and we would be left with no one.  That is where we were left.  But it all worked out.

56MR TOAL:  Your Honour pleases.

57HIS HONOUR:  Thank you.  There is nothing further, Ms Hards?

58MR HARDS:  No, thank you, Your Honour.

59HIS HONOUR:  Thank you, Ms Hards and your instructor and the investigators in this matter for the professional job that you did in preparing this investigation and plea.

60MS HARDS:  As Your Honour pleases.

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