Director of Public Prosecutions v Mikula

[2014] VCC 1809

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01571
CR 14-01572

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER MIKULA

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	30 - 31 October 2014
DATE OF SENTENCE:	31 October 2014
CASE MAY BE CITED AS:	DPP v Mikula
MEDIUM NEUTRAL CITATION:	[2014] VCC 1809

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For Accused	Ms L. Torres
For the Director of Public Prosecutions	Mr D. Plummer

HIS HONOUR:

1Christopher Mikula, you pleaded guilty to an indictment charging you with an offence of trafficking in not less than a commercial quantity of methylamphetamine on 17 January of this year.  Charge 2; an offence of trafficking in not less than a commercial quantity of 1, 4-Butanediol on 17 January of this year; an offence of possession of cocaine; an offence of possession of MDMA; an offence of possession of Alprazolam; and an offence of possession of Ketamine, all on the same day, 17 January of this year.

2You have also pleaded guilty to two summary offences and asked me to take those into consideration.   Those two offences are dealing with property suspected to being the proceeds of the crime; firstly cash totalling $10,380, and secondly; a range of electrical and other items found at the unit in which you were living on that date.

3You have no prior convictions.  The offences of trafficking in a commercial quantity of drugs of dependence carry a maximum term of imprisonment of 25 years.   The possession offences carry a maximum of one year imprisonment’  in circumstances where the court is satisfied on the balance of the probabilities that the offence was not committed for any purpose related to trafficking.   It has been submitted that I should be so satisfied.   The prosecution has not sought to argue otherwise, and I sentence you on that basis for those offences.

4The prosecution tendered and relied upon a written opening, which is Exhibit A.  It was read in court yesterday, I am not going to read it again.  It reveals that on 17 January of this year police visited your unit at 4/2A Dobson Street in South Yarra in connection with another enquiry and found a number of items which suggested that you had been involved in trafficking in methylamphetamine and Butanediol.   There were - in addition to quantities of those drugs of dependence - in excess of the minimum for a commercial quantity, and quantities of the other drugs of which you are charged with possession.  There were a number of other items of glassware, digital electronic scales and various other items pointing to the fact that you were engaged in trafficking in drugs of dependence.

5The total quantity of pure methylamphetamine found at your premises on that day was 266 grams, which is more than two and a half times the minimum commercial quantity.   The total quantity of liquid containing Butanediol amounted to 32.3 kilograms.  The minimum commercial quantity for that drug is two kilograms.  The total quantity of cocaine was 17.6 grams, and that was about 70 per cent pure.  There were 3.7 grams of MDMA, 88 tablets of Alprazolam and 0.8 of a gram of Ketamine.  The purity of the methylamphetamine ranged from about 90 per cent to 100 per cent.  100.5 grams exhibited a purity of 90 per cent and 143.3 grams itself, well above the minimum commercial quantity, had a purity of 100 per cent.

6You were originally charged with trafficking in methylamphetamine in a commercial quantity and Butanediol on a between dates basis.   I am told that there was a negotiated plea which was indicated just prior to the commencement of the committal hearing.  It is accepted that you are entitled to a full discount for an early indication of a plea.   The value of that is essentially twofold in that it saves the state a considerable cost of a jury trial and it saves the witnesses the inconvenience of coming to court and giving evidence.  It is also consistent with remorse for your offending conduct.  I propose to give you full credit for your plea of guilty and the early indication of that plea of guilty.

7The offences of trafficking in commercial quantities of drugs of dependence are serious offences.   They are offences which require the court to impose terms of imprisonment.  Your counsel provided me with a written outline of submissions, which is Exhibit 1.   They do not seek to undermine the proposition that I have just made that these are offences which must carry terms of imprisonment.  Clearly the extent of your involvement in the offence of trafficking and the nature of the offence itself needs to be assessed in determining the seriousness of the offences, and your culpability.

8I think it is fair to say that your counsel Mr Heliotis QC presented a realistic plea on your behalf, and it is to your credit that you gave him, and Ms Torres, instructions which are consistent with the way in which that plea was presented.  You have not sought to minimise your role or excuse your conduct.  You have accepted that - albeit on the basis of trafficking by virtue of possession for the purposes of sale of each of those items on 17 January of this year - you are guilty of those offences and you have also sought to explain the nature of the business in trafficking that you were running.

9I will not repeat everything that your counsel said yesterday but it was made clear to me that you had a substantial methylamphetamine (ice) habit, and that you got into trafficking essentially to finance the habit that you had developed.  I accept that, and I accept that offending of that nature is less serious than somebody who goes into trafficking purely for commercial gain.

10You indicated through your counsel that the way in which you conducted your business was with a group of regular customers, that you would purchase, typically, five ounces of methylamphetamine on credit for $37,500, that is $7500 per ounce, you would sell it in ounce lots for $8500 over a period of two to three weeks, and your profit from the sale of methylamphetamine would amount to $10,000 to $12,000 per month.  In addition you would sell the Butanediol typically at a relatively small profit, but netting you something in the order of $1000 to $1200 per month for that particular commodity.

11You are paying rent of $500 a week and you were essentially financing a habit of something in the order of $6000 per month.  So you were still making a bit of a profit upon which you could live, and although it was necessary for you to build up your capital for the next purchase there is no doubt that there was some profit element in it beyond merely supporting your own habit.

12The vice of what you were doing is that you were putting these drugs out into the marketplace.  Once you had sold them on you had no direct control as to who may ultimately come into possession of the drugs and where they ultimately went.   You were fuelling the illicit drug trade in this state during the period that you were engaged in that business.

13I am not here to sentence you for the business; I am here to sentence you for the offence of trafficking on 17 January in relation to each of Counts 1 and Count 2.  That information though was provided to me in order to enable me to understand the context in which those offences occurred, to enable me to understand your role, and to place the seriousness of the offence and your conduct into a realistic place in the hierarchy of offending conduct of that kind.

14Clearly, there are cases where offending conduct might be regarded as less serious than yours, but there are also many instances of trafficking in commodities of this nature which are significantly more serious.   It does fall to me to sentence you on the basis that you were the owner of the drugs, that you were the one who stood to reap the gains and/or profits from the sale of the amounts that were found in your possession, and of course the amounts themselves are relevant to determining the seriousness of the offence.   The amounts, as has been pointed out on the authorities, are such as to cause me to characterise these as serious offences of their kind.

15Your counsel also provided me with a report of a psychologist, Ms Wendy Northey, which very helpfully sets out a good deal about your background.  You are a British citizen - although I think you were born in Jersey you were brought up in Newcastle upon Tyne - and your father clearly had a busy life as a project manager.   Your mother, who was somewhat older as I understand it, was also busy running a small business.

16Your mother had had three children by a previous marriage who were much older.  The youngest was 21 when you were born.  So essentially you grew up as an only child in what Ms Northey identifies as being a loving family, but not one that was providing you with the attention that you might otherwise have had if your parents had been less involved in their working lives.

17In those circumstances you became particularly interested in, and addicted, to computer games, and led a somewhat solitary life in pursuing that activity.  You did not do as well at school as you might have and you left school without achieving any A levels.

18I understand that your parents would have been keen for you to have come to Australia, as you did in 2005, and to branch out, or to go and experience something of the world, as you did with some friends.   So it was you ended up in Australia on a tourist visa in 2005.  You stayed after your friends went on to New Zealand and onwards in the planned trip.   You had formed a relationship with a young lady, and so it was that you stayed on and in Australia.

19However, it seems to be common ground that you started involving yourself with drugs of one kind or another.    You overstayed your visa, obviously wanting to stay in Australia but afraid that if you left you may not be able to get back in again.  I have no doubt there would have been times that you regretted that decision because it placed you in something of a straightjacket in terms of obtaining gainful employment and maintaining yourself lawfully in Australia.   Whilst there may have been good reasons for you thinking at the time that you wanted to stay in Australia it certainly would have made life more difficult for you as time went on and left you with that cloud hanging over your head that one day somebody was going to come knocking on the door and either kick you out or charge you with some offence.

20However, you did apparently gain some work from time to time until, as I understand it, your involvement with methylamphetamine really took a hold to the point where you found yourself needing to obtain significant funds to maintain your habit.  It is unfortunately a fairly common story and it frequently leads persons like yourself who had, to a point in their mid-twenties, avoided any brush with the law, to crime.   There is no doubt that trafficking in methylamphetamine, and indeed Butanediol, is serious criminal activity.

21The apartment that you lived in, according to the photographs that I was shown, was somewhat chaotic.  It was submitted that the way in which you stored your drugs and the way you went about conducting your business was not inconsistent with that rather chaotic picture of the way in which you were living.  The prosecution, on the other hand, say you were sufficiently organised to run a successful drug trafficking business.  That is the other side of the coin.  I think both need to be considered in determining the seriousness of this offending conduct.

22Ms Northey's report points out that you have apparently suffered from a chronic form of low grade depression, or Dysthymia, and that that has not only marred your personal functioning over the years but has rendered you vulnerable to long term drug use.  It was not suggested that that condition played a significant part in your offending conduct to a point of reducing your moral culpability, but it does go some way to explaining why it was that you got into the habit of using MDMA first of all, then ice.  And it seems that gave you something of a lift and gave you a heightened sense of self.   So it does go some way to explaining how it was you took to drug use.

23The position you are now in, of course, is that you have been in custody now for 287 days, barring today.  You face deportation at the end of your sentence.  You have a young lady who is in court, and was in court yesterday, with whom you apparently have a good relationship, and one about which you have hopes for the future.

24You will, I think, have little chance of getting back into Australia again.  Whether your relationship survives the period of your incarceration and your deportation back to England remains to be seen.  I make no predictions about that.   Undoubtedly it must put a strain on that relationship and your hopes for the future in that regard.   I am informed that your father is well aware of your plight and offers support and the possibility of work when you do get home.  You have been making good use of your time whilst you have been in custody.   I am told that you have been learning welding, and it may be that you will end up able to make a career in that trade, or some other related trade.

25It is submitted that your prospects of rehabilitation are good.  The second of the two charges of trafficking means that I have to sentence you as a serious drug offender.  The law requires me to treat the principle of protection of the public from you as the major sentencing consideration.  I suspect that you will have learnt such a lesson from your incarceration for this, and your fall from grace, that you will not offend again.  I do not regard it as necessary to impose a disproportionate sentence on Charge 2 by reason of the fact that I am sentencing you as a serious drug offender.

26I am also required by the law to impose a sentence on Charge 2 which is cumulative upon other sentences that I impose for other offences.  Again, I have a discretion not to make the sentence cumulative, either wholly or at all.  The prosecution has not sought to persuade me that I should make the sentence wholly cumulative, rather they submit that a degree of cumulation is required.

27It seems to me that your prospects of rehabilitation, the support you can expect from your father when you get home and the lesson you are likely to have learnt from this whole experience, is such that I can exercise my discretion to impose a sentence on Charge 2 which is partly cumulative.  It is necessary, I think, to impose some degree of cumulation, because although it was another commodity, and a business that you have indicated you were engaged in, it is a different type of drug and it extends your criminality beyond merely the trafficking in methylamphetamine.

28However, my intention is to impose a modest degree of cumulation as between the two because although it does extend your criminality, in my view it was essentially part and parcel of the business that you were engaged in.   I think it is appropriate that I treat your possession on that day of those two commodities as possession with intent to sell pursuant to the business about which I was told a good deal by your counsel.

29It was also pointed out to me that you have no relatives in Australia.  I understand that you have been receiving visits from your girlfriend but clearly you have not been receiving visits from family members, and it is unlikely that you will be receiving such visits during your period of incarceration.   Therefore you will have a sense of isolation that is greater than that which a prisoner with relatives and other friends locally would have to endure.   There is no doubt it is harder to undergo sentence when you are so far from your home and your roots.

30I have to sentence you in a way which expresses the denunciation of this court of criminal conduct as serious as this, which punishes you adequately for your offending conduct and deters you adequately from committing further offences of this kind, or at all.  It does not seem to me that it is likely that you will offend again, but there is an element of individual deterrence that I must incorporate into the sentencing process.

31Perhaps the most significant principle that I have to concern myself with in dealing with offences of this nature is deterring other people from engaging in the drug trade and dealing in drugs of these kinds and those quantities for profit.   I need to impose a sentence which pays adequate regard to the need to deter others.  At the same time I need to impose a sentence that is not crushing on you, that takes into account the matters that I have indicated were relied upon by your counsel, and which facilitates your rehabilitation as much as I reasonably can, consistent with the other sentencing considerations.

32So far as the two summary offences are concerned it seems to me that those offences really are reflective of the offences of trafficking and are features of your trafficking in those substances.   I do not propose to impose sentences that are cumulative in relation to those matters, nor do I intend to impose sentences that are cumulative in relation to the possession of the other drugs; cocaine, MDMA and so on.

33Those offences, as I pointed out to your counsel, pale into insignificance in comparison with the trafficking offences, and I think I can meet my obligations and discharge my responsibility in relation to sentencing by imposing concurrent sentences in relation to each of those offences.  I am ready to pass sentence upon you now.

34On Charge 1 of trafficking in a commercial quantity of methylamphetamine, I convict you and sentence you to imprisonment for a period of four years and six months.

35In relation to Charge 2 of trafficking in a commercial quantity of Butanediol, I convict you and sentence you to imprisonment for a period of four years and six months.

36On Charge 3 of possession of cocaine, I convict you and sentence you to imprisonment for a period of three months.

37On Charge 4 of possession of MDMA, I convict you and sentence you to imprisonment for a period of two months.

38On Charge 5 of possession of Alprazolam, I convict you and sentence you to imprisonment for a period of one month.

39And on Charge 6 of possession of Ketamine, I convict you and sentence you to imprisonment for a period of one month.

40For the offence of dealing with the proceeds of crime involving cash, I convict you and sentence you to imprisonment for a period of four months.

41In relation to the offence of dealing with proceeds of crime involving the other property, I convict you and sentence you to imprisonment for a period of three months.

42I sentence you on Charge 2 as a serious drug offender and I direct that that matter be entered in the records of the court.  As I have indicated I am required to regard protection of the community from you as principle purpose of offending, however I have formed the view that it is not necessary to impose a disproportionate sentence in order to achieve that objective, and I also am not inclined to impose total cumulation of sentence in relation to Charge 2.

43I order that the sentence on Charge 1 is to be regarded as the base, and I order that six months of the sentence on Charge 2 be served cumulatively upon the sentence on Charge 1, making a total effective sentence of five years' imprisonment, and I order that you serve a period of three years and four months before you become eligible for parole.

44I declare 287 days of pre-sentence detention, which does not include today, as time served on the sentences that I have imposed, to be deducted administratively from the time you will actually have to serve, and I make the orders for forfeiture and disposal of property in accordance with the drafts, and also for the provision of a forensic sample.  That will involve you being requested to provide a scraping from the inside of your mouth.  If you provide that to the authorised officer that is the end of the matter.

45If, however, you fail or refuse to provide that, then the officer will be authorised to obtain a blood sample and may use reasonable force to do that.  I am quite sure you will not put the officer to that trouble when requested to provide the sample.  Are there any other orders?

46ASSOCIATE:  6AAA.

47HIS HONOUR:  Yes.  But for your plea of guilty I would have sentenced you to imprisonment for a period of seven years and six months with a non-parole period of five years and four months.  Any other orders?

48MS TORRES:  No, Your Honour.  Your Honour pleases.

49MR PLUMMER:  No, Your Honour.

50HIS HONOUR:  Two o'clock.

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