Director of Public Prosecutions v Nikev

[2021] VCC 303

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01493

DIRECTOR OF PUBLIC PROSECUTIONS

v

ERAN NIKEV

---

JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	18 MARCH 2021
DATE OF SENTENCE:	26 MARCH 2021
CASE MAY BE CITED AS:	DPP v NIKEV
MEDIUM NEUTRAL CITATION:	[2021] VCC 303

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Trafficking in a drug of dependence – commercial quantity –  Possession of a drug of dependence – Knowingly dealing with proceeds of crime – Negligently dealing with proceeds of crime – Summary charge of unlawful possession of a schedule 4 poison – Summary charge of possess prohibited weapon without exception or approval – Plea of guilty

Legislation Cited:      

Cases Cited:Roach v The Queen [2020] VSCA 205; Mourkakos v R [2018] VSCA 26; Parks v R [2017] VSCA 232; Akoka v The Queen [2017] VSCA 214; Fernando v R [2017] VSCA 208; Haddara v The Queen [2016] VSCA 16

Sentence:                  Total effective sentence of 3 years and 11 months’ imprisonment with a non-parole period of 2 years and 3 months.

Section 6AAA declaration: 6 years and 6 months’ imprisonment with a non-parole period of 4 years and 6 months.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Porceddu	Office of Public Prosecutions
For the Accused	Mr L. Richter	Slades & Parsons

HER HONOUR:

1Eran Nikev, on 19 November 2019 at around 7.00 am members of Victoria Police executed a search warrant at the short stay accommodation where you had been living since 1 November 2019.  Your partner was awake and in the living room.  You were asleep in one of the bedrooms.

2The Charges to which you have pleaded guilty are based upon the following items found in the search:

(a)   Charge 1 – Trafficking in a drug of dependence, namely methylamphetamine, in not less than a commercial quantity

(i)On the couch in the main room, there was an open bag of methylamphetamine with a total weight 4.2 grams, and which was 84% methylamphetamine;

(ii)7 other bags containing methylamphetamine with the following weights and purity were found in your room:

199.6 grams at 79% purity

85.9 grams at 29% purity

17.8 grams at 74% purity

1.6 grams at less than 0.7% purity

5.4 grams at 84% purity, and

1.7 grams at 73% purity.

(b)   Charge 2 - Possession of a drug of dependence

(i)two plastic bottles containing the drug 1,4 Butanediol, one of which weighed 990.6 grams and the other 35.2 grams;

(c)   Charge 3 - Knowingly dealing with proceeds of crime

(i)$250 AUD in your possession

(ii)inside a black bag in the safe in your room was $10,000 AUD wrapped in duct tape, $2,500 AUD, $700 USD, ₪1,400,[1] as well as €755.

[1]Israeli new shekel.

(d)   Charge 4 - Negligently dealing with proceeds of crime

(i)A men’s Tag Heuer smartwatch and

(ii)a silver Apple iPad found in your room.

(e)   Summary Charge 7 – Possession of a schedule 4 poison

(i)A box containing 12 Viagra tablets found in the safe, and

(ii)two sachets of a gel which contained sildenafil;

(f)    Summary Charge 13 – Possession of a prohibited weapon

(i)A black conducted energy device in a pouch beside the bed, in your room.

3Also located in the search was a Sunbeam Food Saver VAC780 and a quantity of unused silver mylar bags.

4You were interviewed by police that day.  When asked your address you gave the address of the short stay accommodation.  You denied knowing who lived at that address.[2]  Regarding the Viagra you admitted you did not have a prescription for that substance, and said you thought it was ridiculous that one was required.[3]  You said you thought the taser type device was a torch.[4]  You said it was not your safe.[5]  I note that you had in your possession the key to the safe and that the safe was not an item that was provided by the landlord with the property.

[2]Answer 54.

[3]Answers 171-178, 204-221.

[4]Answer 181-197.

[5]Answers 239-250, 299-302.

5You told the police a number of times that you had a drug problem.

Offence Gravity

6Your counsel accepted, on your behalf, that trafficking in a drug of dependence in not less than a commercial quantity is a serious offence and that it almost invariably calls for a sentence of imprisonment.  He submitted, however, that this was not a particularly serious or grave instance of the offence.  Whilst I accept that is the case, Charge 1 carries a maximum penalty of 25 years' imprisonment, and is an inherently serious offence.  Here the offence relates to 327.8 grams of methylamphetamine, which is approximately 1.3 times the commercial quantity threshold of 250 grams of mixed substance.  228.7 grams of the total amount in your possession was of 70% purity or higher, and only 1.6 grams was of very low purity.

7In a weight based system of penalties relating to drugs of dependence the weight of the drug in question is important, but it is not the only factor to be taken account in assessing the gravity of any particular offence.  In your case there was no other evidence, aside from the presence of the bag sealer and bags, about your activities.  In the absence of such evidence I cannot find that you were selling the drug yourself, or whether you were part of a larger business.  On the other hand there is no evidence to suggest that you were a pawn or had a role such as a minder of the drug.  I accept the submission of your barrister that I cannot infer from your pleas of guilty to Charges 3 and 4 that those items were the fruit of trafficking carried out by you, in the past.

8In respect to Charge 2, your counsel submitted that it was quite possible that all of that drug was in your possession for personal use, but accepted that you were unable to discharge the onus to persuade me, on balance of probabilities, that the drug was for personal use only.

Personal Circumstances

9At the time of the offending you were 50 years old, and you are now 52.  You have no prior convictions.

10You were born in Israel and raised in a law abiding family, with none of your close family having issues to do with drugs or alcohol, or mental illness.  Your father passed away around 19 years ago, and your mother is still alive, at age 87.  You have two older siblings.  You describe your upbringing in this family as loving and caring.

11You finished secondary school in Israel before travelling to different countries, winding up in Melbourne.  In your 20s you were in a relationship with a woman, for around seven years, and after that relationship ended you married and had a son, who is now 19 years old.  Your marriage broke down around 10 years ago.  You suffered some depression as a result and sought treatment in the form of counselling for several sessions, and prescription medication.

12Aside from that period of depression you have not suffered from any mental health problems.  Your counsel submitted, and I accept, that this period of depression was a cause of your increased drug use, and your consequent offending.  This provides an explanation, but not an excuse, for your descent into drug use and these offences.

13You describe yourself as a social drinker and told Mr Cummins, who interviewed you for the purposes of this plea hearing, that you had used amphetamine, ecstasy and cannabis recreationally from around the age of 30.  You told Mr Cummins it was not until after the breakdown of your marriage that you developed a dependency on methylamphetamine and then on GHB.

14You had joint custody of your son and in the period leading up to this offending he had been living with you.  You sent him back to live with his mother because you did not want him to see the extent of your drug use.

15After you were bailed on these charges, and whilst you were in residential rehabilitation at The Cottage, in Shepparton, you commenced a relationship with one of the other program participants, who is now pregnant to you.  Such a relationship was not permitted by the program rules, and that woman left The Cottage.  I was told that despite leaving the premises, she has been able to participate in the program.

Matters in Mitigation of Sentence

16You were bailed on these charges on 14 May 2020.  You went into residential rehabilitation at The Cottage, in Shepparton.  The Cottage program is a four stage process with an initial period where contact with others outside the program is limited, then phase 2, where a participant can leave the premises during the day, and phase 3 where a participant may take weekend leave.  The facility is staffed 24 hours a day, and there is CCTV.

17Ms Hutchison, the CEO at The Cottage, gave evidence before me about the impact of the COVID-19 pandemic upon the timing and rules of the usual phases of the program.  Because of the restrictions imposed by the pandemic response, the period under which your movements were significantly restricted was longer than it would otherwise have been.

18Ms Hutchison said that you complied with the conditions of your bail, and the guidelines of The Cottage.  The only breach was in December 2020, when you visited Melbourne.  In the context of conflict in your relationship you used methylamphetamine.  You reported this to staff at The Cottage voluntarily.  I note that whilst it is of concern that after some seven months of residential rehabilitation you used drugs in a stressful situation, rather than seeking guidance or assistance from those at The Cottage, relapse in the course of rehabilitation is not unusual and it is not a sign that all is lost.

19During the initial 16 weeks you were not permitted to leave the facility unless accompanied by a worker.  In phase 2 you could go out, subject to a curfew between 6 AM and 6 PM, and also go out for day trips to Melbourne, on the weekend.

20Ms Hutchison gave evidence that, in her view, there had been a significant change in you during your passage through the program.  She described you as a “tough cookie” when you entered the program and set in your ways.  She said that you were grateful for the opportunity and whilst the work had been hard, you had started to take on a new way of thinking and challenging your beliefs about yourself.  She reported, as one indicator of this, that you had resumed contact with your mother, to whom you had not spoken for five years due to the guilt and shame about your lifestyle.

21You have been living in transitional housing, which is next door to The Cottage, since October 2020.  For approximately one month before the plea hearing you had been working casually at SPC in the factory.

22It was submitted on your behalf that the period of residential rehabilitation at The Cottage was not only relevant to your prospects of rehabilitation, but that it also amounted to a restricted regime which I should take into account in the way discussed by the Court of Appeal in Akoka v The Queen.[6]

[6]Akoka v The Queen [2017] VSCA 214.

23I accept that there is evidence that for around five months you were subject to restrictions upon your movements outside The Cottage facility, and that you were required to and did engage in programs and therapy to address your rehabilitation.  I will therefore moderate your sentence by reference to the time you spent under the restrictive regime at The Cottage.  I note that this is not a mathematical calculation or reduction of the sentence I would otherwise have imposed, but rather a factor to be taken into account in the sentencing discretion.  In your case it carries moderate weight in mitigation.

24Also relevant to your prospects of rehabilitation are your lack of prior convictions, your work history until relatively recently, and that you have pro-social family members whom you do not want to disappoint again.[7]  I consider that you have reasonable prospects of rehabilitation, provided you remain drug free.

[7]See, for example, the reference of Ms Brandman.

25Your lack of prior convictions, until the age of 52, is also relevant in a more general sense, and the fact that you lived so many years as a contributing member of society, without criminal convictions, is a factor that in itself I take into account in mitigation of your sentence.

26

You indicated that you would plead guilty to these charges at a relatively early stage, on the day of the committal but before any witnesses were called.  Your pleas of guilty are a significant factor in your favour by reason of utilitarian benefits to the court and the facilitation of the administration of justice. The weight in mitigation given to your pleas of guilty increases in view of the effect of the

COVID-19 pandemic upon the operations of the court.  I accept that your admissions of guilt reflect a degree of insight and remorse.

Other Sentencing Principles

27Charge 1 relates to methylamphetamine.  The prevalence of that drug in the community means there is a need for additional weight to be given in the sentencing exercise to general deterrence and denunciation.[8]

[8]Haddara v The Queen [2016] VSCA 16, [66].

28Whilst I accept that you have made progress towards your rehabilitation, in my view specific deterrence remains a factor of some weight and that you need to be deterred from committing further offences.

29Charge 1 is a category 2 offence so that I am required to impose a sentence of imprisonment not combined with a community correction order, unless one of the exceptions set out in the Sentencing Act 1991 apply.  Your counsel did not submit that any of the exceptions were made out in your case.

30In order to inform myself as to current sentencing practice for the offence in relation to Charge 1, I reviewed a number of sentences regarding trafficking in not less than a commercial quantity of a drug, by possession of that drug for sale.[9]  Each of those cases differed, for various reasons, on the facts related to the offending and the offender.  Two factors which are particularly relevant to sentencing you are that you have no prior convictions, and that there is no other evidence about your trafficking other than your possession of methylamphetamine.

[9]Fernando v R [2017] VSCA 208; Mourkakos v R [2018] VSCA 26; Parks v R [2017] VSCA 232; Barwick v R [2015] VSCA 100; Roach v The Queen [2020] VSCA 205.

31The sentences I impose are:

Charge	Offence	Maximum	Sentence	Cumulation
1	Traffick CQ	25 years	3 years 6 months	base
2	Possess DoD	5 years	3 months	1 month
3	Knowingly dealing with proceeds of crime	15 years	1 year	3 months
4	Negligently dealing with proceeds of a crime	5 years	3 months	1 month
7	possess schedule 4 poison	10 PU	$250	-
13	possess prohibited weapon	2 years / 24 PU	1 month	-
TES: 3 years 11 months NPP: 2 years 3 months

32On Charge 1, trafficking in a commercial quantity, three years and six months' imprisonment.

33Charge 2, possession of a drug of dependence, three months' imprisonment.

34Charge 3, knowingly deal with the proceeds of crime, one year.

35Charge 4, negligently dealing with the proceeds of crime, three months' imprisonment.

36Summary Charge 7, possession of a Schedule 4 poison, fined $250.

37Summary Charge 13, possession of a prohibited weapon, sentence is one month.

38The sentence on Charge 1 is the base sentence.

39I direct that one month of the sentence on Charge 2, three months of the sentence on Charge 3 and one month of the sentence on Charge 4 be served cumulatively upon each other and upon the sentence imposed on Charge 1.

40By my calculations, that leads to a total effective term of imprisonment of three years and 11 months and a non-parole period of two years and three months is set.

41I declare, pursuant to s.18 of the Sentencing Act, that you have already served 186 days not including today as pre-sentence detention and I direct that that figure be entered into the records of the court.

42Pursuant to s.6AAA of the Sentencing Act, I state that had you not pleaded guilty, I would have sentenced you to 6 years and 6 months’ imprisonment with a non-parole period of 4 years and 6 months and I will make the forfeiture and disposal orders sought by the Crown.

43Mr Richter and Mr Porceddu, is there anything outstanding?

44MR PORCEDDU:  No, Your Honour.

45MR RICHTER:  No, Your Honour.

46HER HONOUR:  We will adjourn.

- - -