Director of Public Prosecutions v Michael
[2015] VCC 1017
•24 July 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-02365
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARRY MICHAEL |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 24 July 2015 | |
CASE MAY BE CITED AS: | DPP v Michael | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1017 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Hughan (Plea) Ms S. Flynn (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr Heliotis QC (Plea) Mr Z. Zayler (Sentence) | Melasecca Kelly & Zayler |
HIS HONOUR:
1 Harry Michael, on 3 June 2015, you pleaded guilty to Indictment D11042580.1 containing six charges, being one charge of trafficking in a drug of dependence, namely cocaine (Charge 1), and five charges of possessing a drug of dependence, being cocaine (Charge 2), stanozolol (Charge 3), testosterone (Charge 4), methandriol (Charge 5) and prasterone (Charge 6). The substances the subject of Charges 3 to 6, both inclusive, can be described as steroids.
2 The maximum penalties in respect of these offences are for Charge 1, 15 years’ imprisonment; for Charge 2, 5 years’ imprisonment; and for Charges 3–6 both inclusive, 12 months’ imprisonment.
3 Prior to dealing with the facts that found the charges, a chronology of these proceedings should be set out. The offences were committed on 13 April 2013. You were arrested on that day and remanded in custody until 15 August 2013. On 9 December 2013, your committal proceeded by way of a hand‑up brief with no witnesses being cross-examined. The following day a trial date of 1 December 2014 was set at an initial directions hearing. Until the matter resolved on 6 November 2014 to the charges on the current indictment, you faced a charge of trafficking in cocaine in an amount not less than a commercial quantity. A plea date of 2 March 2015 was set, but on that day your matter was not reached and it was adjourned to 3 June 2015. Accordingly, 27 months have passed between your arrest and sentence. This delay and how you have used that time are relevant to your sentence, as will become clear shortly.
4 Tendered as Exhibit A on the plea was an amended summary of prosecution opening for plea that was read aloud in court. In summary, on 13 April 2013, you were arrested outside your home in Eileen Street, Armadale. A search of you, your car and your home revealed the drugs of dependence that are the subject of the charges. In particular, found in a pantry was a clear plastic container which held 500.5 grams of white powder that, upon assay, was found to contain cocaine of an approximate purity of 50 per cent. This substance was in your possession for sale (Charge 1).
5 Beside the clear container was a green container which had within it 38.2 grams of white powder that contained cocaine of an approximate purity of 25 per cent. Also located in your car, in the house and on your person, were a number of zip-lock deal bags containing cocaine of various purities weighing a total of 9.74 grams. When the contents of the green container are combined with the contents of the zip-lock bags, the total amount of substance contained in the powder was cocaine in an amount of 48.94 grams. This material is the subject of Charge 2. It was agreed that a substantial portion of this cocaine was for sale and some was for your personal use (Charge 2).
6 The steroids the subjects of Charges 3 to 6, both inclusive, were for your use in bodybuilding. During the course of the search, you directed police to various drug items. When interviewed under caution, you made “no comment” answers to questions put to you. Tendered as Exhibit B was a bundle of photographs of the drugs and paraphernalia related to the charges.
7 Tendered as Exhibit 1 on the plea was a bundle of reports and references. I will not list them as they are individually recorded in the transcript of these proceedings. I have carefully read each document.
8 You are 47 years old. You migrated to Australia from Cyprus with your family when you were but an infant. You are the youngest of six children. Your father was a carpenter by trade, a gambler, heavy drinker and violent towards your mother and you and your siblings. Your father is 82 years of age and resides in aged care, whilst your mother suffers from dementia. Your mother, who is devout in her faith, remained with your father and the family despite his proclivities.
9 You were brought up in the northern suburbs of Melbourne and educated at East Preston primary and secondary schools to year 10 level. You left school barely literate or numerate. You commenced an apprenticeship as a chef but failed to complete your indenture. Together with your brother, you opened a restaurant in Dorset Road, Croydon in 1986 that operated until it was successfully sold in 1990. When the restaurant was sold, you and your brother went your separate ways; he to become a man of the cloth, which involved study overseas and a loss of contact with you. In 2002, you opened a cafe on your own and, in 2006, commenced to operate a second. It was after 2006 that you started to use cocaine to meet, as you saw it, the pressures of operating two cafes.
10 You had been exposed to alcohol and cannabis as teenager and you were a regular user of cannabis from 16 years of age until your mid-thirties. Whilst you had experimented with stimulants, they did not become part of your life until you commenced to abuse cocaine.
11 You had married at 20, in approximately 1987, and there are three children of that union: Daniel, aged 25; Jade, aged 23; and Nectaria, aged 15. Your increasing use of cocaine caused disharmony in your marriage and it ended acrimoniously in 2007, and thereafter, for some time, you had limited contact with your children. From 2007 until 2009, you lived as a single man and your cocaine use continued, particularly as you entered into the club scene during that time.
12 In 2009, you went to live with your brother at his monastery in the Blue Mountains with the intention of becoming drug-free. You lived there for six month and did become drug-free. However, upon leaving the monastery and returning to Melbourne, you soon recommenced to abuse cocaine.
13 In 2004, you met your now wife, Astrid, who is the author of two references contained within Exhibit 1. You met her when you operated a café in the Victoria Hotel in Beaconsfield Parade. You formed a de facto relationship with Astrid, your now wife, at about the time of your divorce from your first wife. The relationship with Astrid was repeatedly placed under stress by your abuse of cocaine, an example of which is the conversation recorded in a telephone intercept, the transcript of which was tendered as Exhibit 3 on the plea.
14 Little was said as to how you lived in the years between 1990 and 2002 nor the years immediately prior to your arrest, save that in the latter period you worked as a short-order cook from time to time and were a heavy gambler as well as a heavy abuser of cocaine.
15 Upon being released on bail with a daily reporting condition on 15 August 2013, you spent ten weeks at a residential treatment facility and thereafter participated in regular counselling sessions with employees of Lamberti and Associates and Gordon Storey psychologist, as well as regularly attending Gamblers and Narcotics Anonymous. You have been drug-free since your arrest in April 2013 (see Exhibit 1).
16 You have renewed your commitment to the Greek Orthodox faith and receive support from Bishop Iakovos of Miletoupolis, who is convinced that you are remorseful for your conduct and desire to change your life. You have also sought and received the support of your friends and family, as is evidenced in the references from them that are contained within Exhibit 1.
17 Since August 2014, you have been in employment as a chef, first at a seafood restaurant in Moorabbin working a six-day, 60‑hour week and thereafter at the Main Street Cafe where you work a 40‑hour week which includes only two night shifts, which permits you to spend more time with your family.
18 You reside in Box Hill South with your wife, Astrid, and your son, Yanni, who is aged nine months. Whilst living in Box Hill, your two daughters returned to live with you. Recently, your older daughter, Jade, moved into her own accommodation although, it was put, she spends as much time at home with you and your family as she does at her own home.
19 Your wife is a schoolteacher, presently on maternity leave and, in her references, she writes as to your renewed support of her and her activities at school, including fundraising. In essence, you now live a normal life, free of gambling, alcohol and drugs of dependence and have divorced yourself from your previous social set. Accordingly, you have used the time since your arrest to rehabilitate yourself.
20 It was put on your behalf by Mr Heliotis of her Majesty’s counsel that the motive for and circumstances of your offending were that, as a result of an increasing level of debt to your drug suppliers, you were given the cocaine found on 13 April 2013 to sell in order to expunge your debt. It was put that, having been an abuser of cocaine for so long, you were in a reduced state owing to your addiction and consequently agreed to the proposition. It must be noted that your offending is limited to one day, being 13 April 2013.
21 As these submissions were not supported by any evidence, you were called on the plea. You proved to be an unsatisfactory witness. Even taking into account the pressures of giving evidence, your inability to explain the financial arrangement between you and your supplier in respect to the cocaine and your description of how you physically handled and prepared the product for your own use and sale, beggared belief. However your evidence did establish that you had purchased cocaine in the past for between $5,000 and $7,000 per ounce and accordingly, on your own evidence, the cocaine in your possession, if sold in one‑ounce lots, was worth over $100,000. The evidence of Federal Agent Randall places the value of the cocaine in your possession in the order of twice that value. It suffices to say that a large sum of money was to be made from the sale of this cocaine and on your evidence, problematic as it is, you stood to expunge a debt of $50,000.
22 The harm caused by drugs in our community cannot be overstated. Indeed, the harm that cocaine caused to you is self-evident. General deterrence and just punishment are sentencing principles that must play a major role in the sentencing synthesis.
23 Mr Heliotis relied upon your plea to the settled indictment. It is properly viewed as an early plea and is evidence of your remorse and it facilitates the course of justice. He further relied upon delay for the purposes of demonstrating the substantial steps you have taken to become drug-free and to adopt a normal working and family life.
24 You have two minor prior findings of guilt which are of no relevance to the sentencing exercise. You have not reoffended since your release on bail. For the first twelve months whilst on bail, you were obliged to report to police on a daily basis. Thereafter, you reported twice weekly. Mr Heliotis relied upon this to demonstrate that your freedom whilst on bail had been restricted and further relied upon the worry that the forthcoming prosecution had caused you. Finally, it was put that further incarceration would put at jeopardy your continued rehabilitation and would cause you to question the benefit of your hard work to date, as well as separating you from your family, employment and your continuing rehabilitation program.
25 Ultimately Mr Heliotis submitted that a community corrections order with conditions was the appropriate sentencing disposition in your case. However, when tested on this submission, he conceded that many of the more punitive conditions available in such an order had no real application to you, but submitted that a lengthy community corrections order with a work component and supervision, would meet the purposes of general deterrence and punishment and that together with the rehabilitative component of psychological assessment and treatment, you would be regularly reminded that you were being punished by the length of the order.
26 Mr Heliotis relied upon the period of time which you have spent by way of pre-sentence detention to emphasise that there had already been some punishment by way of custody imposed upon you during the course of these proceedings.
27 In response, Mr Hughan, for the Crown, submitted that an immediate term of imprisonment was the only appropriate sentence in the circumstances of your offending, because of the volume, quality and value of the cocaine in your possession for sale. As well, he relied upon the quality of your evidence concerning the nature of the relationship that you had with your supplier and the conditions that were attached to your possession for sale of the cocaine as reflecting adversely on your prospects for rehabilitation.
28 Ultimately I was persuaded that you should be assessed for your suitability for a community corrections order but emphasise to you that the issue of whether you would receive an immediate term of imprisonment was still well and truly alive. The matter was adjourned for further plea and sentence pending receipt of a full community corrections order report.
29 Having received a full report from the Department of Justice and Regulation dated 10 July 2015, I propose, with your consent, to release you on a community corrections order.
30 Do you consent to being released on a community corrections order?
31 OFFENDER: Yes, Your Honour.
32 HIS HONOUR: Taking into account the circumstances of the offences and their effects, with your personal circumstances and antecedents, endeavouring to produce a sentence that reflects and promotes the principles and purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows.
33 In respect to all charges on the indictment, I sentence you to a community corrections order for a period of four years with conditions.
34 The conditions which I attach to the community corrections order are:
(i) You be supervised, monitored and managed as directed by the Secretary to the Department of Justice and Regulation;
(ii) You perform 300 hours of unpaid community work;
(iii) You undertake assessment and treatment (including testing) for drug abuse or dependency;
(iv) You undertake assessment and treatment (including testing) for alcohol abuse or dependency;
(v) You undertake assessment and treatment in respect of mental health;
(vi) You undertake behaviour programs directed at reducing your risk of reoffending; and
(vii) You undertake assessment and treatment and rehabilitation in respect of gambling.
35 Are you prepared to enter into a community corrections order in those terms?
36 OFFENDER: Yes, Your Honour.
37 HIS HONOUR: I declare, pursuant to s6AAA of the Sentencing Act 1991, that but for your plea of guilty, I would have sentenced you to a total effective sentence of three years’ imprisonment with a non-parole period of 18 months’ imprisonment.
38 My associate will now come down to you with the documentation.
39 This order lasts for four years and commences today and will end on 23 July 2019. You must attend at the Box Hill Community Corrections Services at 703 Station Street, Box Hill within two clear working days after the commencement of this order, which is today. There are a series of mandatory conditions imposed in respect of any community corrections order and they appear on the order that I have signed and you will receive a copy of it.
40 In addition to those mandatory conditions, I have made the following orders.
· You must perform 300 hours of unpaid community work over a period of four years as directed by the regional manager. If you fail to comply with this order, the Secretary of the Department of Justice or delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act 1991;
· You must be under the supervision of a Community Corrections Officer for a period of four years;
· You just undergo assessment and treatment (including testing) for drug abuse or dependence, as directed by the regional manager;
· You must undergo assessment and treatment (including testing) for alcohol abuse or dependency, as directed by the regional manager;
· You must undergo any mental health assessment (and treatment) that may include psychological, neuro-psychological, psychiatric or treatment in a hospital or residential facility, as directed by the regional manager;
· You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager;
· You must participate in programs and/or courses that are consistent with achieving the purpose of treatment and rehabilitation that may include employment, education, cultural and personal development programs, as directed by the regional manager but particularly, assessment and treatment and rehabilitation in respect of gambling.
41 A copy of this will be provided to the Crown, Mr Zayler and yourself. If you breach any condition of this order, you commit a criminal offence which is punishable by a period of three months' imprisonment and you will be brought back to me. At that time, if you have breached your community corrections order, one of the options available to me is that I am at large in re-sentencing you. I recommend to you heartily, do not come back to me. There are many people in the community that would regard this sentence as more than merciful.
42 MR ZAYLER: As Your Honour pleases.
43 HIS HONOUR: I understand there are ancillary, disposal orders sought.
44 MS FLYNN: That's so, Your Honour. I understand copies have been handed up.
45 HIS HONOUR: Thank you. Your attitude to that, Mr Zayler?
46 MR ZAYLER: No objection, Your Honour.
47 HIS HONOUR: Those orders have been signed and I hand them down.
48 MS FLYNN: As Your Honour pleases.
49 HIS HONOUR: You may come out of the dock, Mr Michael.
50 OFFENDER: Thank you, Your Honour.
51 HIS HONOUR: Thanks, Ms Flynn, for coming back.
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