Director of Public Prosecutions v Orlov

[2017] VCC 180

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-02017

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALEXANDER ORLOV

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2017
DATE OF SENTENCE:	6 March 2017
CASE MAY BE CITED AS:	DPP v Orlov
MEDIUM NEUTRAL CITATION:	[2017] VCC 180

REASONS FOR SENTENCE
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Subject:Traffic commercial quantity of a drug of dependence – methylamphetamine; drive whilst disqualified; possess cartridge ammunition

Catchwords:
Legislation Cited:
Cases Cited:  R vVerdins [2007] VSCA 102
Sentence:  3 years and one month imprisonment; 2 years non-parole

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering
For the Accused	Mr T. Shocker

Pages 1 - 5

 

 

HER HONOUR: 

Charges

1Alexander Orlov, you have pleaded guilty to one charge of trafficking a commercial quantity of a drug of dependence, namely methylamphetamine; one charge of possess methorphan; one charge of possess cannabis; one charge of driving while disqualified; and one charge of possess cartridge ammunition. 

2The maximum penalty for trafficking a commercial drug of dependence is
25 years; the maximum penalty for possess a drug of dependence is 30 penalty units or one year; the maximum for driving while disqualified is 30 penalty units or four months' imprisonment; and the maximum penalty for possess cartridge ammunition is ten penalty units.

Circumstances of Offending

3The circumstances of your offending are that on 14 July 2016, police observed a Volkswagen Golf driven by you in Heidelberg Road, Clifton Hill when it mounted and drove over a lane divider.  Police intercepted the vehicle in Grant Street and conducted a search.  They located an amount of methylamphetamine in the centre console of the vehicle and a further plastic bag containing methylamphetamine hidden between two plastic panels underneath the steering column. 

4Having found an electronic swipe key during their investigation on 15 July 2016, the police searched an apartment at Freshwater Place in Southbank where they located the following items: 

·further Snap Lock bags containing methylamphetamine;

·a small quantity of cannabis in a Ziploc bag,

·a quantity of methorphan and a single round of 9 mm ammunition;

·handwritten notes detailing sales of drugs and money owed; and

·text messages detailing other sales were found on your mobile phone. 

Summary charges

5The total weight of methylamphetamine found in both the car and apartment was 268 grams and this quantity relates to Charge 1 - traffic a drug of dependence in a commercial quantity.  Charge 2 relates to the methorphan found in the apartment which weighed 52.3 grams with a purity of 72 per cent.  Charge 3 relates to the small quantity of cannabis found in the apartment, and summary Charge 10 relates to the single round of 9 mm ammunition that was found in the apartment.

6Summary Charge 4 relates to the fact that when you were apprehended driving by the police, you were suspended from driving.  You were interviewed by the police and admitted to possession of the methylamphetamine found in the vehicle.  You also admitted to using some of this drug approximately eight to ten hours earlier.  Otherwise, you made a no-comment record of interview.

7Your personal circumstances were outlined to the court by your counsel and further details were contained a report from Dr Aaron Cunningham dated
17 February 2017. 

Personal Circumstances

8You are now 28 years old and you were born and raised in Siberia in Russia.  You never met your biological father and you moved to Australia when you were ten with your mother and stepfather.  Unfortunately, you were subjected to physical abuse by your stepfather who was also an alcoholic. 

9You attended primary school in Russia and secondary school at the Glen Waverley College in Melbourne.  You were bullied at school because of your Russian background and felt that you did not fit in.  In Year 11, you were expelled from school for fighting and you completed your VCE at TAFE. 

10When you were 21, you were kicked out of the family home and you felt abandoned and rejected.  Your relationship with your mother and stepfather is a strained one.  You have not spoken to your stepfather in four years and your mother has since returned to Russia without giving you any notice. 

11You worked at a café at the Royal Melbourne Hospital from the age of 18 to 26.  You worked your way up to nationwide operations manager and you were responsible for new locations and ensuring that the business operated properly.  In your role with that business, you travelled and worked in Sydney and Brisbane. During this time, you had a romantic relationship that ended before you returned to Melbourne. 

12You commenced using methylamphetamine from the age of 22, initially in response to your pressures at work.  Your use escalated when you were living in Brisbane where you felt lonely and isolated and you were smoking about a gram a day at the time. Your use escalated and by the time these offences took place you were using three grams a day. 

Psychological Report

13In Dr Cunningham's opinion, you presented with a major depressive disorder and this depressive disorder had been exacerbated by your lack of connection with your caregivers.  Further, you felt you never fitted in.  You felt lonely, unwanted, abandoned.  Your cognitive functioning was in the average range and you gave no indication of intellectual disability.

14However, Dr Cunningham was of the view that you presented with some protective factors that may reduce your risk of future offending and improve your prospects of rehabilitation. These included:

·your significant employment history and the fact that you are motivated to return to employment; 

·you now report a negative perception of drug use and stated that you did not want to return to it;

·you had the support of a friend who visited you in custody and he has provided stable accommodation for you in the past and will continue to do when you are released from custody; and

·you were motivated to do something about your drug habit and you had undergone urine screens that were negative and programs to address addiction while in custody. 

Defence Submissions

15In his plea on your behalf, your counsel conceded that due to the nature of your offending and the need to give effect to general deterrence and denunciation, a term of imprisonment of immediate imprisonment was appropriate.  The main thrust of his submission was the protection of the community was best advanced by your successful rehabilitation and that the court should give weight to your sound prospects in considering the head sentence and non-parole period. 

16In support of this submission, your counsel relied on the following mitigating factors: 

·you had pleaded guilty at the committal mention; 

·with respect to the trafficking charge, you have no relevant prior criminal history; 

·this was your first time in custody;

·your trafficking had been in support of your own addiction; 

·you had no family in Australia and only one friend who was supporting you while you were in custody but this meant that your experience in custody was an isolated one;

·while in custody, you had engaged in education opportunities that had been available to you; 

·you were motivated to return to employment and not to use drugs; 

17Your counsel also submitted that Principle 5 in Verdins'[1] case was applicable as due to your major depressive disorder, your time in custody would be more onerous than for someone who did not suffer from this condition.

[1] [2007] VSCA 102

Prosecution Submissions

18The prosecutor took no issue with your counsel's submissions other than with respect to the application of Principle 5 in Verdins' case.  It was submitted that any allowance made for your time in gaol being more onerous due to your depression should be a small one and this is because your condition was at least in part due to your offending and the prospect of a gaol sentence.

Sentencing Remarks

19Trafficking in drugs is a serious crime as it is recognised that drugs cause great harm in our community.  General deterrence is an important sentencing consideration as others must be discouraged from taking that same path.  However, I accept all the mitigating factors put by your counsel and I have given you an appropriate discount for your plea of guilty.  In addition to a small degree, I have taken into account that your time in gaol will be more onerous than for those who do not suffer from major depression.

20I accept that given your good work history, you have sound prospects of rehabilitation and that you have commenced your rehabilitation while in custody.  Would you please stand up?

21On Charge 1 of trafficking in a commercial quantity of methylamphetamine, you are sentenced to three years.

22On Charge 2, possession of a drug of dependence, namely methorphan, you are sentenced to a period of imprisonment of three months.

23On Charge 3, possession of the cannabis, you are sentenced to one month.

24On the charge of drive while disqualified while your license was cancelled, you are fined the sum of $300. 

25On the possess ammunition, you are fined $150. 

26The sentence of three years on Charge 1 is the base sentence.  I cumulate one month of Count 2 on Count 1.  That means that the head sentence is three years and one month.  I fix a non-parole period of two years.

27Pursuant to section 6AAA of the Sentencing Act 1991 But for your plea of guilty, you would have been sentenced to four years and six months, to serve three years.

28I make a disposal order with respect to the drugs and I make a forfeiture order with respect to the ammunition. 

29I declare 235 days as being marked on the record as already served.  Is there anything else?

30COUNSEL:  No, Your Honour.  

31HER HONOUR:  Yes, thank you.

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