Director of Public Prosecutions v Melifronedes
[2014] VCC 1979
•24 November 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR -14-01982 & CR-14-01667
CR -14-01668
CR -14-01669
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DIMOS MELIFRONEDES FU VOM MICHAEL WEBSTER |
---
| JUDGE: | HIS HONOUR JUDGE MAIDMENT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3, 10 & 11 November 2014 |
| DATE OF SENTENCE: | 24 November 2014 |
| CASE MAY BE CITED AS: | DPP v Melifronedes |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1979 |
REASONS FOR SENTENCE
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Legislation Cited:
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Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Duckett | |
| For Accused Melifronedes | Ms E. Turnbull | |
| For Accused Vom | Ms Z. Garde-Wilson | |
| For Accused Webster | Ms N. Giorgianni |
HIS HONOUR:
1
Each of you have pleaded guilty to an indictment, charging you, Melifronedes with trafficking a commercial quantity of methylamphetamine, between
2 January 2014 and 23 April 2014.
2
You, Vom, with trafficking in methylamphetamine between 31 January and
9 April 2014.
3You, Webster, with trafficking in methylamphetamine between 5 February and 2 April 2014.
4You, Melifronedes, have pleaded guilty to Charges 6 and 7 on the indictment, burglary and theft.
5You, Vom, have pleaded guilty to two offences of possessing methylamphetamine, Charges 4 and 5. The first of those occurred on 2 April 2014, and the second occurred on 9 April 2014.
6You, Webster, have also pleaded guilty to an offence of handling stolen goods, namely stolen registration plates for two motor vehicles in Charge 8. Trafficking in cocaine in Charge 9. Possession of methylamphetamine, Charge 10. And possessing a Category E Longarm, Charge 11.
7You, Melifronedes, have also pleaded guilty to an indictment, charging you with using a carriage service to cause offence.
8The offences of trafficking in a commercial quantity of methylamphetamine, Charges 1, 2 and 3 on the first indictment, carry maximum terms of imprisonment of 25 years. The offence of burglary carries a maximum term of imprisonment of five years. Of theft, ten years. First of all I think I should deal with the summary offences to which you have each also pleaded guilty, and ask me to take into account.
9You, Melifronedes, have admitted two offences of dealing in property, being the proceeds of crime. First is Summary Charge 8, and the property was $11,000 in cash. The second was Charge 9, which involved a significant quantity of sundry electrical goods and other items that were reasonably suspected of being the proceeds of crime.
10You, Vom, have also admitted and asked me to take into account Summary Charge 5, relating to the improper storage of cartridge ammunition. Charge 6 of failing properly to store a firearm. Charge 7 of possessing explosives, in the form of fireworks. Charge 8, Charge 9 and Charge 10, each of improper storage of cartridge ammunition.
11You, Webster, have asked me to take into account the following offences that you have admitted. Charge 3, driving whilst suspended, which was the subject of discussion a few minutes ago. Charge 4, driving an unregistered vehicle. Charge 9, unlicensed driving. Charge 10, unlicensed driving. Charge 11, unlicensed driving. Charges 12, 13, 14 and 15, driving an unregistered motor vehicle. Charge 16, fraudulent use of registration plates. Charge 17, driving an unregistered motor vehicle. Charge 18, fraudulent use of registration plates. Charge 19, Charge 20, driving an unregistered motor vehicle, and Charge 21 of not displaying the required registration plates.
12The penalties for those summary offences are set out in the prosecution opening, which is Exhibit A. I should mention, in particular though that the offence of trafficking in cocaine carries a maximum term of 15 years imprisonment, and possessing a Category E Longarm, a maximum term of imprisonment of seven years. The offences of dealing with property suspected of being the proceeds of crime, carry maximum terms of imprisonment of two years. Handling stolen goods, maximum term of imprisonment of ten years.
13You, Melifronedes, and you, Webster, have also admitted prior convictions and court appearances.
14I note, in your case, Melifronedes, that the last of your prior court appearances was in the year 2000, and you have no prior convictions for offences involving either possession or trafficking in illicit drugs.
15You, Webster, have a number of prior convictions and court appearances. All of them are apparently concerned with driving, either whilst disqualified or badly.
16The prosecution relied upon Exhibit A and F, as agreed summaries of the facts in relation to the two indictments. They were read on the previous occasion, the subject of some discussion, and I am not going to read them again. The summary, Exhibit A, sets out the circumstances in which each of you were engaged in trafficking methylamphetamine. It is clear that the motive for each of you was profit, as well as feeding your respective ice habits.
17It was a persistent course of conduct. I note that the prosecution submitted that I should conclude that you, Melifronedes, were the most significantly involved. This was essentially your business, although you were operating as, a subsidiary to a group that was referred to during communications between you as the syndicate. So it is reasonably to be inferred that the level at which you were trafficking was below that of the persons who were engaged in supplying you.
18I was invited to treat your role, Vom, as subsidiary to that of Melifronedes, and your role, Webster, as lower than either that of Melifronedes and Vom. It seems that you were engaged in transporting the drugs, of storing the drugs on behalf of Melifronedes and indeed the three of you. You were nevertheless doing that for profit, knowing the nature of the business in which you were engaged.
19The amounts that were trafficked were, it seems, towards the lower end of the scale, in terms of commercial quantity. It was submitted on behalf of you, Melifronedes, that I should conclude that this was not a particularly sophisticated enterprise in which you were engaged. I am inclined to that view. It was pointed out to me that each of you were suffering from ice habits, so that you were, at least in part, drawn into this kind of offending as a result of your pre-existing ice habits. I accept that. Nevertheless, there were significant sums of money involved in the trafficking and significant amounts of methylamphetamine that was being put out into the marketplace. For that reason it is to be treated as a serious course of offending. Parliament has marked the seriousness of offending at that level by reference to a maximum penalty of 25 years imprisonment.
20I might say in passing that it seems to me that upon researching current sentencing practice, the Director of Public Prosecutions should look very carefully at the question of bringing an appeal before the Court of Appeal in this state to increase the level of current sentencing practice. It is a course that is open and one that, in my view, should be followed. I regard current sentencing practice as too low. I note that you, Melifronedes, in the course of your discussions captured by electronic surveillance suggested that you did not care if you got 12 years and you thought you should get 20 years. It seems to me that you have a better idea of the sort of punishment that people who engage in trafficking methylamphetamine at a commercial level should be getting than is reflected in current sentencing practice.
21Having said that, there are many reasons why I would not regard this matter as a suitable vehicle for using this court as a vehicle for pushing the boundaries of current sentencing practice, and I hasten to add to what I have just said, that the sentences that I intend to impose are, in my judgment, appropriate to the particular circumstances of the case and the particular circumstances of each of you three offenders.
22As far as the second indictment is concerned, that of against you, Melifronedes, of using a carriage service cause offence. It was submitted on your behalf that - and indeed you have indicated through your communication, that you were significantly affected by drugs at the time that you engaged in that conduct. It seems to me strange conduct. It does not seem to be in character, in the sense that you have no prior convictions for that kind of conduct. It is not inconsistent with your proposition that you were significantly affected by drugs.
23It is also consistent perhaps with the psychological and neuropsychological reports about your mental impairments, and I look at that conduct also in the context of the drug trafficking conduct, and indeed in the conduct involving burglary and theft, in which you also engaged, and I look at it in the context of examining your past history and the fact that you were able to stay out of trouble for a significant period of time, and that your life has deteriorated, it seems quite significantly since you were beaten up in Cyprus in 2009.
24
I am bound to say that those reports and other matters relied upon by your counsel, Melifronedes, cause me to consider long and hard the effect of those mental impairments upon your moral culpability in respect of all these offences and also the other limbs of the Verdins principles, upon which
Ms Turnbull relied in the course of the plea. There was some discussion during the course of the plea between myself and Ms Turnbull, but then subsequently between myself and Ms Duckett, on behalf of the prosecution, about the extent to which those mental impairments bore upon your moral culpability and the other aspects of the Verdins principles.
25I have not found it easy to ascribe the appropriate moderation of sentence. But I have ultimately concluded that I should moderate sentence in a meaningful and what in my judgment is an appropriate way, which in your case, will reduce the sentence that I would otherwise have imposed for these offences quite significantly. To the extent that that then lowers the bar, so far as your co-offenders are concerned, and in Mr Webster's case, I think there are no Verdins principles to be applied. In your case, Vom, there are, in the sense that you are now suffering from depression as a result of the unfortunate death of your fiancé during the period that you have been incarcerated and the effect that that will have upon your capacity to cope with a term of imprisonment. So you probably both benefit to some extent from the approach that I feel bound to take in relation to Melifronedes.
26Looking at each of your cases separately, I have already touched on some of the most significant aspects of the plea put on your behalf, Melifronedes, and your counsel relied upon your plea of guilty and your early indication of resolution of the matters. That your prior convictions are now quite old. There were offences of dishonesty, which are to some extent relevant to sentencing in relation to the burglary and theft charges and the handling - the dealing with proceeds of crime charges. But as I have already mentioned, they were quite a significant period of time ago and principally the plea was put on the basis that the psychological and neuropsychological reports indicate the various mental impairments that are referred to there, including major depressive disorder and an acquired brain injury and your overall IQ has been assessed as being in the borderline range.
27There have been a number of reversals with your failure of your business, which have no doubt contributed to the escalation in your illicit drug use and I take all those into account as part of the context in which you got into this particular offending conduct.
28There are a number of references relied upon, which indicate that you have many good qualities, that you have the capacity to rehabilitate yourself and that you are fortunate enough to have family and friends who stick by you and will support you. I have to say that looking at the facts of the case, I am not entirely sure the extent to which your wife was aware at various times as to your trafficking activities. I probably do not need to go into that. But I am quite clear in my mind that she remains very supportive of you. You still have a lot of work to do, in terms of being a father and husband and family man. Therefore there's a good deal at stake in terms of your furthering the rehabilitation that you already started during your period in custody. It is very much to your credit that you have set about making yourself a useful member of the prison society and risen to a point of being a peer educator.
29You have demonstrated that you are capable of being a responsible person. All of that bodes well for your prospects of rehabilitation and I accept that they are moderately good. I say "moderately good", not because I denigrate the work that you have already done, but because you have a longstanding drug habit. Unless and until you really get to grips with that and realise that you have a substance abuse disorder which will be with you for a very considerable period of time, that you will have the ability to stay out of trouble and to stay away from drugs over a sustained period of time. So there is much work to be done. I hope that you are able to make use of Marngoneet and other programs that are available through the prison system during the period that you will be serving sentence.
30Your counsel urged me to pay proper regard to the totality principle and to the fact that it would be open to me to impose a fairly lengthy period during which you would be eligible for parole. That too, I think, has force and will assist you with your continued rehabilitation once you have continued to serve your sentence. I will come back to you in a few minutes, but dealing with the other offenders.
31You, Vom, are 31 years of age. It was submitted that your offending was precipitated by your ice addiction. You have no prior convictions. I am inclined to think that is true. Unfortunately it is the case that the people who get on to ice start committing offences, even people who had otherwise demonstrated a capacity to lead an honest and industrious life. It seems to me that you are well within that category.
32I note that the fact that you got caught, what was it, 2 April or thereabouts, did not deter you, you just carried on. That might simply be a symptom of the degree to which you were an ice addict at that time. But it did not act a sufficient warning shot across your bows to stop you continuing with your conduct. It may well be that you could not really get out of it at that time because you owed money. I suspect that there was an element of that in it and I suspect that that applies also to Mr Melifronedes. You were dealing with people who were not inclined to take a lenient view of monies owed to them and therefore were, towards the end, feeling quite desperate about your situation. I accept that that was the case.
33
You have known Mr Melifronedes for a considerable number of years, 16 years as I understand it, and it must have been through him that you got involved in this. I accept that you were acting as a middle-man for
Mr Melifronedes, and that therefore you are to be treated as less culpable in the hierarchy of offending than Mr Melifronedes.
34You admitted your offending conduct to police. You have pleaded guilty at an early stage. I believe you have moderately good prospects of rehabilitation. Again I urge you to make full use of the opportunities that may be offered to you to pursue rehabilitation that is, drug courses,now that you will be a sentenced prisoner and those courses will hopefully will be available to you.
35You have already shown your interest in and willingness to participate in whatever courses are open to you. That is very much to your credit and speaks well for you good prospects of rehabilitation. I say "moderately good" because it is not that easy to deal with a substantial drug habit, particularly an ice habit and it should not be underestimated the difficulties that you will continue to have unless and until you pursue a lengthy course of rehabilitation treatment for that addiction.
36You have no prior convictions and that stands you in good stead at this time. I accept that you will find your period in custody more difficult to deal with because of the depression that you have developed as a result of your fiance's unfortunate death, and I take that into account.
37It was submitted on your behalf that a two year term of imprisonment, combined with a Community Corrections Order would be an available disposition to the court. I am not particularly attracted to that. I think in your case, that a term of imprisonment with a non-parole period, which will allow you to continue your rehabilitation under the supervision and with the assistance of the Parole Board is an appropriate option and one that I am more attracted to.
38Turning to you, Webster, it seems clear that you have a very bad driving record. That would suggest a lack of respect for the law. However, there are people who speak well of you and you have impressed a number of people, not just with your sporting prowess, but with your character generally. Whilst I have no doubt ice played its part in your downfall, you have the capacity, with the assistance of friends and family, to drag yourself out of this. You have no prior convictions for offending of this kind and I have little doubt that, had it not been for ice, you would not have got involved in this kind of criminal conduct at this level.
39There is some unsettling aspects of your offending conduct. One is the possession of 40-odd grams of cocaine and your admission of possessing that for the purposes of sale, through your plea of guilty to trafficking in cocaine. The other matter that is particularly troubling is your possession of the machine gun, so called.
40So I am invited not to treat that possession of that firearm as serious as I would otherwise have been inclined to do, in the context of a plea of guilty to trafficking in methylamphetamine in a commercial quantity and accept that you might have been simply holding that weapon, along with the cocaine. Nevertheless they are serious offences and offences which the court cannot ignore. I feel bound in your case to impose of degree of cumulation sentence, to reflect your participation in those offences as well. I treat your role in the offence of trafficking in a commercial quantity of methylamphetamine as being less than either of your two co-offenders and therefore asses the appropriate penalty in your case as less than that or either of your two co-offenders.
41I say the same in relation to you, that although I regard your prospects of rehabilitation as moderately good, I add the "moderately" because of your ice use and the fact that it will be necessary for you to get on top of that and not simply treating it as a passing aberration and you have really got to look at the extent to which you need to pursue drug rehabilitation courses, in order to increase you prospects of staying out of trouble when you get out and not run the risk of getting back into offending conduct because of your further use of ice.
42I am quite satisfied that with the family supports and the supports of others, that you have the ability to lead a decent life and put this all behind you. I cannot ignore your continued driving offences either, but I do not propose to add to the term of your imprisonment by reference to those offences, directly at any rate, I propose to fine you. It will be a matter for you whether you seek to have those fines converted to imprisonment. I will be disqualifying you for a period which will extend beyond your non-parole period, but not by a very significant amount, so that it will impact for any great length of period the length of time on your ability to find work.
43However I cannot ignore your continued lack of respect for the Road Safety Act and other laws relating to driving, and therefore I must reflect that in an appropriate level of punishment and hopefully at a level which would assist in deterring you from committing further offences of that kind as well.
44
My duty is to weigh all of these factors and others that I have not mentioned, but which were put to me on the hearing of the plea and contained in materials relied upon by your respective counsel. I have to express the denunciation of this court for each of the offences that you have committed.
I need to punish each of you adequately, albeit moderated to the extent that
I have indicated by various factors that have been relied upon on behalf of each of you.
45I need to pay proper regard to the need to deter each of you from committing further offences and to pay particular regard to deterring others, albeit in your case, Melifronedes, that deterrence both of you and others is moderated to some extent by your mental impairments. But I need also to have regard to your rehabilitation and to factor that into the sentencing orders that I make to facilitate your continued rehabilitation in each of your cases, as far as I reasonably can.
46You, Melifronedes and Vom of course have already served quite a significant part of your sentence in pre-sentence detention and I will need the updated figures in respect of each of the offenders, before I pass sentence.
47
MS DUCKETT: Your Honour. In relation to Mr Melifronedes,
215 days.
48HIS HONOUR: Yes.
49MS DUCKETT: In relation to Mr Vom, 229 days.
50HIS HONOUR: Yes.
51MS DUCKETT: In relation to Mr Webster, 27 days.
52HIS HONOUR: Yes.
53MS DUCKETT: And they are exclusive of today.
54HIS HONOUR: Yes, all right. I think there are also some ancillary orders too, aren't there?
55MS DUCKETT: Your Honour, there is a Disposal and Forfeiture Order that it will just - it will need to be finalised. There is some three items that we just need to have some brief discussions with Ms Garde-Wilson and Ms Turnbull, that are on their currently.
56HIS HONOUR: Yes.
57MS DUCKETT: And what's proposed is those discussions can take place. The informant will be here today - he is here and will be here today, and they can be sent through to your chambers perhaps.
58HIS HONOUR: All right, well look I am happy with that. If counsel are happy, what I will do is, I will indicate that I will make those orders once they are in terms agreed between prosecution and defence and I would expect the draft orders that are sent through to me to reflect the agreement that is reached.
59MS DUCKETT: Yes. Of course.
60HIS HONOUR: So I will make those orders in due course, they being not opposed.
61MS DUCKETT: We should be able to finalise any outstanding issues by the end of today.
62HIS HONOUR: Yes. All right.
63MS DUCKETT: If that's suitable.
64HIS HONOUR: Yes, all right.
65Now I am going to proceed to sentence you.
66Mr Melifronedes, would you stand.
67On the indictment - the first indictment, I will call it, Charge 1, trafficking in a commercial quantity of methylamphetamine over the period of about three and a half months, covered by the charge, I convict you and sentence you to imprisonment for a period of four years.
On Charge 6 of burglary, I convict you and sentence you to imprisonment for a period of 12 months.
On Charge 7 of theft, I convict you and sentence you to imprisonment for a period of 15 months.
On Indictment 2 of using a carriage service to harass, I convict you and sentence you to imprisonment for a period of four months.
In relation to the two summary charges that you have asked me to take into account, on Charge 8 of dealing with property, being the $11,000 in cash,
I sentence you to imprisonment for a period of nine months.
On Charge 9 of dealing with property, being the sundry goods listed in that charge, I convict you and sentence you to imprisonment for a period of nine months.
68The sentence on Charge 1 is the base. Six months of the sentence on Charge 7 of theft, two months on the offence of dealing with property reasonable suspected of being the proceeds of crime, Charge 8, and two months of the dealing in property, the subject of Charge 9, will be served cumulatively with each other and upon the sentence of four years on Charge 1 of the first indictment. The sentence on the second indictment will commence today.
69That leaves a total effective sentence of four years ten months and I order that you serve a period of three years before you become eligible for parole.
70But for your pleas of guilty, I would have sentenced you to imprisonment for a period of six years and six months, with a non-parole period of four years and four months.
71I declare, in your case, that 215 days, not including today, of pre-sentence detention is to be reckoned as time served on the sentences that I have imposed and deducted administratively from the period that you will have to actually serve and that fact is to be noted in the records of the court.
72You can take a seat now.
73Mr Vom, would you stand please.
On Charge 2 of the indictment that you face, I convict you and sentence you to imprisonment for a period of three years and seven months.
On Charge 4 of possessing methylamphetamine, just short of an ounce, I think, I convict you and sentence you to imprisonment for a period of six months.
On Charge 5 of possessing methylamphetamine, I convict you and sentence you to imprisonment for a period of one month.
In relation to the summary charges, Charge 5 of improperly storing cartridge ammunition, I sentence you to imprisonment for one month.
On Charge 6 of failing to store a firearm, I convict you and sentence you to imprisonment for a period of two months.
On Charges 8, 9 and 10, each of improperly storing cartridge ammunition,
I convict you and sentence you to imprisonment for one month on each of those charges.
74All of the sentences to run concurrently, making a total effective sentence of three years and seven months, and I order that you serve a period of two years and four months before you become eligible for parole.
75But for you plea of guilty, I would have sentenced you to four years and ten months imprisonment, with a non-parole period of three years and two months.
76In your case, I declare 229 day, not including today, of pre-sentence detention, as time served on the sentences that I have imposed, to be deducted from the period that you will actually have to serve and that fact is to be noted in the records of the court.
77Take a seat please.
78In your case, Mr Webster, on Charge 3 of trafficking in a commercial quantity of methylamphetamine for almost two months. I sentence you to imprisonment for a period of three years and convict you.
For dishonestly handling two sets of number plates, I convict you and sentence you to imprisonment for a period of six months.
For Charge 9, trafficking in cocaine, I convict you and sentence you to imprisonment for a period of 15 months.
Charge 10 of possessing methylamphetamine, I convict you and sentence you to imprisonment for a period of one month.
On Charge 11 of possessing an unregistered Longarm, I convict you and sentence you to imprisonment for a period of 15 months.
In relation to the summary offences that you have admitted and asked me to take into consideration, on Charge 3 of driving whilst suspended, I convict you and sentence you to a fine of $2,500.
On Charge 4 of driving an unregistered vehicle, I convict you and fine you $100.
On Charge 9, Charge 10 and Charge 11 of unlicensed driving, I convict you on each and fine you $100 on each.
On Charge 12, 13, 14 and 15, each of driving an unregistered vehicle, I convict you and fine you $100 on each of those offences.
On Charge 16 of fraudulent use of registration plates, I convict you and fine you $75.
On Charge 17 of driving an unregistered vehicle, I convict you and fine you $100.
On Charge 18 of fraudulent use of registration plates, I convict you and fine you $75.
On Charge 19 of driving an unregistered vehicle, 20, driving an unregistered vehicle, I convict you on each and fine you $100 on each.
On Charge 21 of not displaying the required registration plates, I convict you and fine you $50.
79Now I make that a total of $3,800, so if you would not mind just checking that please.
80In your case, the sentence on Charge 3 of three years imprisonment is the base and I order that three months of the sentence on Charge 9, that is trafficking in cocaine, and four months of the sentence on Charge 11 of possessing an unregistered Longarm, be served cumulatively upon one another and upon the base sentence of three years for Charge 3, making a total effective sentence of three years and seven months imprisonment, and I order that you serve a period of two years and four months before you become eligible for parole.
81But for you pleas of guilty, I would have sentence you to imprisonment for a period of four years and ten months and ordered that you serve a period of three years and two months before becoming eligible for parole.
82I declare 27 days of pre-sentence detention as time served on the sentences that I have imposed and those will be deducted from the period that you will actually have to serve and I order that that fact be noted in the records of the court.
83I make the Ancillary orders for disposal. It is just disposal, is it, or forfeiture and disposal?
84MS DUCKETT: It is forfeiture and disposal, Your Honour.
85HIS HONOUR: Forfeiture and disposal of property, in accordance with the drafts that will be agreed by your respective counsel and provided to him.
86MS TURNBULL: As Your Honour pleases.
87HIS HONOUR: Right, thank you. Are there any other orders that I need make? Just hold on a sec.
88MS DUCKETT: Your Honour, I just have a query about Charge 7, in relation to Mr Vom, the summary charges, being that of being in possession of explosives.
89HIS HONOUR: One month imprisonment,
90MS DUCKETT: One month, thank you, Your Honour.
91HIS HONOUR: Yes, sorry. Yes.
92MS DUCKETT: And is there a period of licence disqualification in relation to Mr Webster?
93HIS HONOUR: Oh yes, there is. I have said that I was going to do that and Mr Webster, you will also be disqualified from driving or holding a motor vehicle licence of any kind for a period of three years, and that will run from today.
94All right. Any other orders?
95MS DUCKETT: No, Your Honour.
96MS TURNBULL: No.
97MS GIORGIANNI: No, Your Honour.
98HIS HONOUR: Yes, thank you.
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