Director of Public Prosecutions v Oorloff

[2016] VCC 1561

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00301

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADRIAN OORLOFF

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JUDGE:	HIS HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 October 2016
CASE MAY BE CITED AS:	DPP v Oorloff
MEDIUM NEUTRAL CITATION:	[2016] VCC 1561

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

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms A. Bhai
For the Accused	Mr T. Lavery

HIS HONOUR:

1Adrian Oorloff, you are to be sentenced for one charge of incitement to commit the offence of kidnapping.  One charge of trafficking in a drug of dependence, methylamphetamine and two charges of possessing a drug of dependence.

2Applicable maximum sentences are 25 years of imprisonment for incitement to kidnap, 15 years imprisonment for trafficking in a drug of dependence and 12 months imprisonment for possession of a drug of dependence.  You are also to be sentenced for the summary offences of possessing cartridge ammunition when unlicensed  and two charges of possessing,  without authority or licence, poisons under Schedule 4 of the Drugs Poisons and Controlled Substances Act.  Respective maximum penalties are fines of 40 penalty units and 10 penalty units. 

3When interviewed by police on 21 August 2015, mainly you exercised your right to silence.  At committal in February 2016, you entered a plea of guilty and the matter was listed for plea hearing in this court.  You receive the benefit of your plea of guilty and cooperation,  both from an early stage.  You have facillitated the interests of justice and you have expressed remorse.

4At your plea hearing,  which ran on 20 September and 5 October, Ms Bhai for the Crown tendered a written Crown opening, three booklets of photographs extensively depicting scenes, objects and other aspects related to your offending and the victim impact statements of Richard Make, Jason Mako and Janette Mako.

5Mr John Lavery, for you, tendered the reports of treating psychiatrist
Dr Peter Heffernan, dated 9 September 2016,  forensic psychologist,
Jeffery Cummins, dated 17 September 2015,  forensic psychiatrist
Dr Leon Turnbull and treating psychologist Dr Richard Young.  He also tendered drug testing results and certificates related to rehabilitation programs in remand custody,  your own letter to the court and a large number of letters of character reference.  Mr Lavery provided a brief outline of plea submissions.

6The circumstances of your offending are comprehensively stated in the 12 page Crown opening which is tendered as Exhibit A.  My own summary may be much shorter.  It includes some matters put to me on your behalf by Mr Lavery, not challenged by the Crown. 

7As of mid-2015, you had known Mikayla Sudaru for just over ten years.  You are a chiropractor.  Over that time, she was your patient and then friend.  She had been in a relationship with Richard Mako.  By that means, you came to know him and he, perhaps quite incidental to the matter, became a patient. 

8During and after the period of her relationship with Richard Mako,
Mikayla Sudaru developed strong grievance against him and complained often to you about him.  The truth of such complaint is not proven.  In any event, a relationship between you and Sadaru developed.  It seems that what you planned and did to Richard Mako and his family was driven by this relationship, Sudaru's greivances and thereby your apparent need to act in a quite extravagantly criminal and sinister way against them.  It was not put on your behalf that Sadaru played any significant role in what you did. 

9Your incitement to kidnap Richard Mako was made to a covert police officer, given the name "Daz" in the Crown summary; and ran over the period 29 July to 20 August 2015.  Police had developed concerns for Mr Mako and his siblings in mid-July and they moved out of their home.

10The covert officer made contact with you at an eastern suburban hotel through an acquaintance of yours.  You put the proposition of kidnap to him at that meeting.  Over the following weeks, you met on three other occasions and exchanged texts.  As the arrangement firmed  and in  moved, as you perceived, close to fruition,.   your discussion and stated plans included the following.

1.That you provided a body of personal information about Richard Mako and his family.  That included photographs, information about employment, patterns and routine of movement, motor vehicles, security in the area of their home, a map or sketch of that area. 

2.You said that you had and were conducting electronic surveillance which included tracking devices on motor vehicles.  There is clear evidence that you did this. 

3You describe such activity in considerable and quite sophisticated detail. 

4.The expressed plan was that Richard Mako be taken and delivered to you, likely at or near to a rural property.  He stated that he would "disappear without trace".

5.You spoke of and described what you termed a cremation unit, kept at a rural property.  The stated and/or implicit purpose was to burn his body, leaving no trace including,  you claimed,  of DNA.  .     After your arrest, police attended at a property in Skye owned by an associate.  There was a device which met your description.  Relevant photographs have been tendered.  The owner told police that you had brought it there in early July.  You told him it was a pizza oven.  There is evidence that it was being built in January of 2015. 

6.Toward the end of the offending period, you discussed more immediate opportunity to kidnap.  You paid $5,000 as down payment.  The bargain struck had been $20,000.  On 20 August, you supplied the $5,000 and also two syringes of what you termed "liquid G".  The stated plan was to use this to immobilise him.  You gave instructions about that.  The syringes were later tested to contain 3.3 and 3.4 grams of 1,4-Butanediol.  I was told this is known as GBH.

7.Soon after midnight of 20 August, you reinstalled tracking devices to the Mako vehicles.  On 19 August, there had been discussion of doing this and taking action on the plan in what at least implicitly seems the following days.

8.My description of relevant aspects of your engagement with and incitement of the covert operative is not exhaustive.  As may often be the case in offending of this kind, some of the discussion and engagement between you and the covert can be seen as  bombast.  An example would be suggestion of your past criminal activity.  However, a great deal reflected concrete action and sophisticated surveillance by you of the Mako family.

11At the start of the plea hearing, I excluded as irrelevant some of the Crown opening.  It was that evidence of the actual existence and nature of the incinerating device on the Skye property at paragraphs 51 to 57 of Exhibit A.

12Other reference to it, description of it and stated intention of its use in discussion with the covert operative I found admissible as part of the incitement; and therefore the offence.  My ruling to exclude paragraphs 51 to 57 was, I feel, qualified and the issue re-emerged during the plea, particularly upon admission of the victim impact statements at Exhibit B.  I have ultimately ruled the evidence admissible.  It has plain relevance to victim impact as was raised and I think conceded during  exchange with counsel.

13A more difficult basis of admissibility and consideration is the relevance of its existence at the property to the sentencing purpose of community protection.  I raised this with counsel.   Ultimately, I see it as so relevant;  but also recognise the need for care on this.  You are to be sentenced for incitement to kidnap, not on the basis of a speculative finding that you intended to kill Richard Mako and use the device in the way you stated to the operative.  You are not to be sentenced for offences such as incitement or conspiracy to murder.  The relevance of discovery of the device at Skye to community protection is limited.

14There are other charges on the indictment. 

15On 21 August, police search of your home and office revealed items relevant to the incitement;  for example, $2,000 in cash, batteries and an electronic tracking device.  At your home, was also found a third syringe containing 3.4 grams of 1,4-Butanediol.  The three syringes make out Charge 3, possession of that drug of dependence.

16Charge 4, possession of the drug of dependence cannabis relates to 24.3 grams of that drug in the kitchen of the house.  As to Charge 2, trafficking in methylamphetamine, police found at your home about 30 grams of that drug, another 1.5 grams packaged in 17 plastic bags, electronic scales and a grinder.  Intercepts on your mobile phone revealed ten calls and/or texts relating to trafficking.  The legislative trafficable quantity is 3 grams.

17As to the summary charges, a round of ammunition was found in the kitchen,  at your chiropractic clinic, 18 valves of various Schedule 4 poisons and four tablets of Viagra  (also a Schedule 4 substances)  were found. 

18I have carefully read the tendered victim impact statements.  The Mayco family were forced into hiding for six weeks and moved to 14 different locations.  There were feelings of betrayal, fear, paranoia and vulnerability.  They felt great concern and anxiety for each other.  Much of this continues. 

19Richard Mako states at one point.

"In September 2015, I read the police documentation describing the pizza oven to burn my body.  I became disorientated and incredibly weak.  It felt like all the blood was burning and draining out of my body when I realised how serious the threat was against my life.  I felt like I could not move, so I sat motionless until I felt better.  It still shocks me and I cannot comprehend why this happened to me.  I still cannot understand what drove him to commit to this and distraught that someone may have acted so blindly on lies and rumours".

20Sleep, family life and relationships have been effected.  Professional, social and sporting life impacted.  There have been physical manifestations of the stress caused.  There has, and continues to be  need for psychological treatment.  There has been considerable financial impact.  Yours was a crime that would inevitably cause and has caused a high level of psychological victim impact.  This must be taken into account in your sentence.

21You are a 48 year old man presently awaiting this sentence in remand custody.  You have a very limited criminal history, having been sentenced without conviction in September 2003 for theft and handling stolen goods.  You are of Sri Lankan heritage; however, were born here and raised in the southern suburbs of Melbourne.  Your father died when you were in your thirties.   You were close to him.  Your mother lives in a retirement village in Springvale.  You have a younger sister whom you do not see.  Your family have had no criminal involvement.  Your upbringing seems to have been strict, including physical punishment by your mother, but supportive.  You won a scholarship to Mentone Grammar School at Year 6.  Schooling there included  that you suffered verbal and sometimes physical bullying. 

22After school, you completed a Bachelor of Applied Science and Chiropractic.  You worked at and then bought a chiropractic clinic in Keysborough.  You have been successful in that profession and at the time of arrest for this offending two other chiropractors were employed by you.  Conviction and sentence for these offences will very likely mean that you will not be able to practise in the profession again.

23Over your life, you have suffered physical conditions such as asthma, an eye squint requiring a number of surgeries and spinal symptoms.  It is not put that these are presently in any way seriously debilitating. 

24You have been married twice.  After your second marriage, you began another relationship with your first wife which ran for several years.  You have an adult daughter by your second wife and two younger children born in that second relationship  with your first wife.  You keep in contact with all three children.  You are on good or at least amicable terms with your first wife, the mother of your two younger children.  They live with her.  The diagnosis and opinion about your mental health is inconsistent.  There are diagnosis of or description of symptoms consistent with conditions such as Attention Deficit Hyperactivity Disorder and Obsessive Compulsive Disorder.  There are also, for example, symptoms of a so called hoarding disorder.  You have received treatment, particularly in recent years.  Forensic psychiatrist,
Dr Turnbull, in essence, does not readily agree with such diagnoses.  His report is dated 8 September 2016. 

25This statement of his opinion, although long, seems to be helpful. 

"He", meaning you, "has attracted a range of psychiatric diagnoses and in recent years, OCD, Obsessive Compulsive Disorder and ADHD, Attention Deficit Hyperactivity Disorder was provided.  Opinions have been put that there is an association between those diagnosis and the offending and I do not support those".

26He states:

"He has longstanding anxiety and low self-esteem and these likely stem from his early experiences.  He may have a fairly mild mixed anxiety and depressive disorder.  However, it is immediately apparent that he is not especially outwardly anxious or depressed, rather he presents with some noticeable confidence and ease.  He can be broadly diligent and fastidious and he is a varied and perhaps extravagant and unnecessary collector.  These types of thinking and behaviours maybe relate to self-esteem in his view.  Collecting is now called a hoarding disorder among mental health workers, although that term is not helpful.  I do not see his collecting as pathologically diagnosable and it is not OCD.  OCD is the experience of unwanted and intrusive thoughts and behaviours and the plaintiff is distressed by them and resists them.  They sometimes seek help and present in a distressing state troubled by such thoughts.  Mr Oorloff does not experience that.  A diagnosis of classic Obsessive Compulsive Disorder is not present on my assessment.  In recent years, in his forties, he attracted the diagnosis of ADHD and there has been some submission from two mental health practitioners in that regard.  Dexamphetamine helped him focus on tasks, see more patients in a day and broadly helped him focus.  Prior to his initial Dexamphetamine prescription, he received academic scholarship, ran a chiropractic practice for some 15 years and,  in prison, when Dexamphetamine has been ceased, has achieved certificates and is working in industries.  In total, he has applied himself at a fairly high standard without medication.  ADHD does not have a crisp line marking where diagnosis begins and ends.  While I do not intend to remove the diagnosis, as I am aware my diagnostic threshold is probably higher than some of my colleagues, I struggle to support it with any conviction.  When Mr Oorloff does see freedom, I suggest a conservative approach for those intending to prescribe him medications requiring permits.  To the contrary of the prognosis that he could see psychiatric deterioration in custody, on ceasing Dexamphetamine, he has not.  Dexamphetamine is not provided in custody, its prohibition simply being an unwritten rule due to its trade value amongst prisoners.  He is receiving antidepressant therapy for anxiety and some low mood and is attending psychologists.  He does seem to be energetically partaking in psychological and group sessions and should continue this, as he may develop some insights.  After sentencing, he will likely continue to receive cross-sectional psychiatric assessment and antidepressant medication.  At this stage, those measure suffice for his psychiatric care.  Mr Oorloff fundamentally disputes a kidnap would ever have ensued.  States the illicit drugs were not his and states that the prescription medication was given to him.  By the time of the offending, he had commenced treatment for ADHD and had experienced apparent improvement and focused at least in his workplace.  How features of OCD or ADHD had bearing on the offending is not articulated clearly by those who proposes an association and I do not support such an association being made.  His explanation about self-esteem and anxiety may have some bite in terms of underlying psychological explanation of how he ended up in the relationship, in the somewhat messy predicament he was in.  Perhaps that can be explored by him in the medium to long term to assist preventing a similar recurrence.  On my assessment, he was certainly keen to do that.  He is intellectually capable of such exploration and that may bode well in terms of his rehabilitation.  A long term psychologist in the community is a reasonable proposition".

27Whilst I accept Dr Turnbull's just stated opinions, I also accept that you have exhibited over your life, and at time of offending, strong and unusual traits of obsessive behaviour.  In some ways, the offending itself speaks of that.  Further, Dr Turnbull states the need for ongoing psychological treatment.  However, I see no relevant application of the so called Verdins principles. 

28As my earlier description should make clear, this was serious and disturbing offending.  Although as put by Mr Lavery  the plan could not have come off,  your offence was persistent and carried marked elements of sophistication.  It has caused very substantial victim impact. I see as relevant and  important sentencing considerations of deterrence,  both specific and general,  your moral culpability, condemnation of what you did, the need for proportionate punishment and for community protection.

29     That punishment must be a considerable period of imprisonment.

30     I take into account moderating and/or mitigating factors, which should reduce     that period of imprisonment compared to what the objectively viewed factors would appear to require. 

31Those moderating factors include,  in your case, the following. 

1.  Your plea of guilty and cooperation.  You express remorse.  For example, in your letter to the court.  However, I also perceive limited insight into the seriousness of what you have done.

2.  Your personal history and circumstances.  That includes your psychological symptoms or factors as earlier stated.  Whilst I see no significant application of the R v Verdins and like cases, your psychological issues and traits are part of the personal context for your sentence.  They speak for some leniency.  The more difficult circumstances you have encountered in prison, identified by Mr Lavery,  and also to an extent relevant.  I take into account that you will suffer the additional punishment of loss of your profession.

3.  You have a limited criminal history and in fact no prior convictions.  The tendered character evidence speaks well of you and you have undertaken rehabilitation programs in custody.  You have ability and capacity for rehabilitation.  Your prospects for that are to an extent compromised by what I see to be a lack of insight into the true criminality and harm of your offending.  However, although guarded, I have ultimately decided that you should be sentenced as a person with genuine prospects for rehabilitation.  For example, you present as someone who would likely respond to the deterrent effect of this sentence of imprisonment.

4.  I should not sentence in a way to crush your hopes for the chance of that rehabilitation. 

32Ms Bhai provided to me a number of Court of Appeal decisions and Supreme Court sentences as comparative cases.  As suggested in some of them, current sentencing practice for the offence of incitement to kidnap is difficult to identify.  I bear in mind that most of the cases to which I was referred  deal with incitement to murder.  Further, the particular circumstances including the relevant personal factors were somewhat different,   n a case like Natale and Stallone markedly so. 

33The case of Smith v R, 2014, VSCA 268 which does relate to incitement to kidnap was raised both in respect of my early ruling on evidence of the incinerating device at the Skye property and,  later, as a broadly comparative case.   I bear in mind its differences, for example, considerable in respect of Smith's personal circumstances and prospects for rehabilitation;  but have treated the findings and comments of Mr Justice Whelan as giving some broad guidance.  Of course his sentence must be informed by its particular relevant factors.  Ultimately, it is difficult to see your offence of incitement as anything but a serious example of it.

34I have sought to apply the principle of totality.  For example, I have decided that Charge 3, possession of 1,-4 Butanediol, carries the adverse feature of its relationship to Charge 1, incitement.  However, also bearing in mind that significance, I have not directed cumulation.

35There should be some modest cumulation on Charge 2, trafficking.  I see that drug offences and particularly the summary charges, to be subsidiary to the main offence of incitement.  That is markedly the most serious offence.

36After considering and weighing what I see to be the relevant matters, I sentence you as follow.  Stand up please. 

37On Charge 1, incitement to kidnap, you are sentenced to six years imprisonment.  On Charge 2, trafficking in a drug of dependence, you are sentenced to 12 months imprisonment.  On Charge 3, possession of 1,-4 Butanediol, you are sentenced to six month imprisonment.  On Charge 4, possession of cannabis, you are sentenced to three months imprisonment.  On the three summary offences, you are convicted and discharged.

38I direct that three months of the sentence of Charge 2 be served cumulatively  on the sentence for Charge 1.  That is a total effective sentence of six years and three months.  I set a minimum term of four years and three months before eligibility for parole.  Under s.18, I declare pre-sentence detention of 426 days. 

39I indicate that had you not pleaded guilty, I would have imposed a sentence of nine years, with a minimum term of seven years.  Are there other matters I need to address?

40MS BHAI:  There is just one matter.  If I could just have a word with my friend?

41HIS HONOUR:  Yes.

42MS BHAI:  Just in regards to the possession of cannabis charge, Your Honour, the Crown accepted that that was a small quantity of cannabis and that trafficking purposes were excluded. 

43HIS HONOUR:  Yes.

44MS BHAI:  In those circumstances, the maximum penalty would be penalty units only.

45HIS HONOUR:  Really, even for that amount?  I see.  All right, well thank you for bringing that to my attention.  Just assist me, 24 grams - can somebody give me some idea of the size of that?

46MR LAVERY:  Yes, 50 grams is the maximum extent of a small quantity and as to size, a pouch of tobacco that one sees in prisons ‑ ‑ ‑

47HIS HONOUR:  I see.

48MR LAVERY:  ‑ ‑ ‑ is 50 grams.

49HIS HONOUR:  Yes, I follow.

50MR LAVERY:  Yes.

51HIS HONOUR:  So it's a fine is it?

52MS BHAI:  Yes of five penalty units, Your Honour.

53HIS HONOUR:  What's that about $550 is it?

54MR LAVERY:  Something like that, Your Honour.

55HIS HONOUR:  I don't think I could or should convict and discharge in relation to that matter.  I would convict and fine $250.  You don't seek I presume a stay in relation to that?

56MR LAVERY:  No I do not, Your Honour.

57HIS HONOUR:  Some adjustment may be made to his ‑ ‑ ‑

58MR LAVERY:  That's right.

59HIS HONOUR:  ‑ ‑ ‑ period of imprisonment.  What are the other matters I need to address?  Is there a forensic sample, et cetera?

60MS BHAI:  Yes, Your Honour.  There's three ancillary orders that are sought.  One is a forfeiture order and that's in regards to money seized.  There is also a forfeiture order in regards to other exhibits that were seized and finally, a disposal order is also sought.  I can hand up draft copies of those orders, Your Honour.

61HIS HONOUR:  There's no objection to any of these orders I take it?

62MR LAVERY:  Just if I could have - could I just have a moment, Your Honour ‑ ‑ ‑

63HIS HONOUR:  Yes.

64MR LAVERY:  ‑ ‑ ‑ just to go through.  There is in this way, Your Honour.  We say that the - quite a deal of the material on some of the items is - would not be subject to disposal and as an example, Your Honour, mobile
phone ‑ ‑ ‑

65HIS HONOUR:  Which one are you talking about?

66MR LAVERY:  ‑ ‑ ‑ has photographs of his children, his computer similarly and his hard drives have photographs of family members and ‑ ‑ ‑

67HIS HONOUR:  Which one is this?

68MR LAVERY:  This is Items 11.

69HIS HONOUR:  No, which order?  There are several orders.

70MR LAVERY:  The disposal order, Your Honour.

71HIS HONOUR:  I think there are several disposal orders.  No, I might be just - no, I just received them in multiple ‑ ‑ ‑

72MS BHAI:  There's three copies of each there, Your Honour.

73HIS HONOUR:  I see.  I see, there's a disposal and a forfeiture order. 

74MR LAVERY:  Yes, Your Honour.

75HIS HONOUR:  I think some seemed a bit thicker than others.  I don't think now is the appropriate time to go through ‑ ‑ ‑

76MR LAVERY:  No, I agree with that, Your Honour.

77HIS HONOUR:  To go through in laborious detail.  There are some parts of this disposal order that are self-evidently - should be made subject to the order.

78MR LAVERY:  Yes, I agree with that.

79HIS HONOUR:  Photographs of one of the victims, for example.

80MR LAVERY:  Yes exactly, sir.

81HIS HONOUR:  The various tablets and the like.  I would - if there's going to be argument about it, of any length at all, I think I should hear it on another occasion. 

82MR LAVERY:  Certainly, Your Honour.

83HIS HONOUR:  I could do that in the short term.

84MR LAVERY:  Yes.

85HIS HONOUR:  Ms Bhai, what do you want to say about that?

86MS BHAI:  Your Honour, if there is any argument, then we can bring it back before Your Honour and we can hear it then.

87HIS HONOUR:  Yes, all right.  What about the forfeiture order?

88MR LAVERY:  No issue, Your Honour.

89HIS HONOUR:  All right, well that's in relation to the ammunition.  There's a homemade silencer here, that's the first I've heard of that.

90MS BHAI:  That was an item that was recovered, Your Honour, but it was recovered as part of the investigation, but it ‑ ‑ ‑

91HIS HONOUR:  It's not ‑ ‑ ‑

92MS BHAI:  It's not an ‑ ‑ ‑

93HIS HONOUR:  It's not subject to any charge is it?

94MS BHAI:  No it's not, Your Honour.

95HIS HONOUR:  Yes, thank you.

96MS BHAI:  And I'm not alleging that it was linked in any way.

97HIS HONOUR:  All right, good thank you.  Well I'll sign the forfeiture order.  There's a second forfeiture order related to cash.

98MS BHAI:  Yes, Your Honour.

99MR LAVERY:  That's ‑ ‑ ‑

100HIS HONOUR:  I've signed that too.

101MR LAVERY:  Yes, Your Honour.

102HIS HONOUR:  All right, well I've signed the two forfeiture orders and I'll hand those back and I'll hand back at the same time, but separately, the disposal order which is still the subject of - I'd be - as to that order, I'd be surprised if there couldn't be some sort of agreement about it.

103MR LAVERY:  I expect there will be, Your Honour.

104HIS HONOUR:  So you can discuss it and it can be brought back before me.

105MR LAVERY:  Yes.

106HIS HONOUR:  By you contacting my staff in relation to it.

107MR LAVERY:  Certainly, Your Honour.  Thank you.

108HIS HONOUR:  All right, well is there anything else I need to do?

109MR LAVERY:  No, Your Honour.

110MS BHAI:  No, Your Honour.

111HIS HONOUR:  All right, good.  Could I just say this to the victims of this offence, that I don't think any sentence, when you bear in mind the competing matters, could address what you went through, particularly during that period of time.  You've behaved with great dignity during the course of this hearing.  It would not have been easy for you to listen to a lot of the material that needed to be raised and I wish you the best into the future.

112All right, we'll move onto the next matter, but thank you.  Thank you for your assistance, Ms Bhai.  Thank you for your assistance, Mr Lavery.

113MS BHAI:  Thank you, Your Honour.

114MR LAVERY:  Thank you, Your Honour.

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