Director of Public Prosecutions v Ovadia

[2016] VCC 969

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-00704

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL OVADIA

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	6 July 2016
DATE OF SENTENCE:	8 July 2016
CASE MAY BE CITED AS:	DPP v Ovadia
MEDIUM NEUTRAL CITATION:	[2016] VCC 969

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – possess cocaine – possess methylamphetamine – possess MDMA – possess cannabis L

Legislation Cited:     Drugs, Poisons and Controlled Substances Act 1981 (Vic), Sentencing Act 1991 (Vic)

Cases Cited:DPP vTokava [2006] VSCA 156, R v Merrett & Ors [2007] VSCA 1, Boulton & Ors v R [2014] VSCA 342

Sentence:Charge 1; Convicted and sentenced to a CCO of 4 years and a fine of $5,000. Charges 2, 3, 4; Convicted and sentenced to a CCO of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos	Solicitor for the Office of Public Prosecutions
For the Accused	Mr C. Farrington (Plea) Mr S. Andrianakis (Sentence)	Stephen Andrianakis & Associates

HIS HONOUR: 

1In this matter, Mr Ovadia pleaded guilty to four charges. All the offences involved the possession of a drug of dependence, pursuant to the Drugs, Poisons and Controlled Substances Act. Respectively they involve the drugs cocaine, methylamphetamine, MDA and cannabis L. As pointed out, all of those charges could have been dealt with summarily.

2The matter was originally before the Magistrates' Court at a higher dimension.  There was a determination made there by the police prosecutor.  Summary hearing of the matter was not consented to, hence the matter went into the County Court stream, until the matter was subsequently settled.

3Insofar as the seriousness of the offences in regard to Charges 2, 3 and 4, such is demonstrated by the maximum penalty prescribed of one year's gaol and/or 30 penalty units. 

4As to Charge 1, there was a requirement for me to make a finding pursuant to s.73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). I found the offence was committed for the purpose of trafficking, hence it became a more serious offence, with a maximum penalty of five years and/or 400 penalty units.

5Exhibit A, being the summary of prosecution opening, dated 29 June 2016, of Mr Triandos, who appeared on behalf of the Director, was accepted by
Mr Farrington, who appeared for Mr Ovadia, but for the factual finding that I have just referred to, as the facts upon which I was to sentence his client.

6The amount of cocaine found in Mr Ovadia's car was an amount of 184.1 grams.  For the purpose of s.73(2), the trafficable quantity was three grams.  The drugs were at a 20 per cent purity rate and were in two parcels contained in the pouch found on the passenger seat of the car, with street type sale bags and scales found also in such parcel.  As I said, the level at 20 per cent was, pursuant to the evidence in the depositions, a purity level consistent with street level sales and the value thereof as disclosed in the depositions was postulated at a figure of $54,000.

7The circumstances of the detection of this criminality, as set out in Exhibit A by the learned prosecutor, were somewhat bizarre.  Apparently on a drug binge, Mr Ovadia had hired a street worker, and unfortunately thereafter because of his condition, he became unconscious in her apartment.  The ambulance officers and police were there after called and given that he was unconscious originally when the ambulance officers arrived, to check as to the types of drugs he may have taken, his keys were utilised by a police officer, without a search warrant, to search the car.  It was that search that led to the drugs being found.

8Insofar as the plea in this matter, Mr Farrington has indicated that there is value in the plea because the legality of such search was not at any stage contested.

9Insofar as the record of interview was concerned, Mr Ovadia, in such record of interview, said he had been involved in a street brawl earlier that night. 

10As I say, for the purpose of sentencing once the factual finding was made by me, in regard to s.73, Mr Farrington accepted the facts as detailed in Exhibit A.

11Mr Ovadia has been on bail since 1 June 2014 and I have signed a disposal order.

12In regard to sentence, the prosecution had no issue that in regard to Charges 2, 3 and 4, there was no requirement for an immediate period of imprisonment.  However, there was, in the submission of the prosecutor, a need for an immediate period of imprisonment insofar as Charge 1 was concerned, being a charge of possession in the circumstances where the Court was not satisfied it was not for the purpose of trafficking.

13A forensic sample order was sought.

14Insofar as Mr Farrington's defence plea was concerned, he tendered Exhibit 3 as the outline of such plea.  The biographical or personal circumstances were set out in particular in paragraphs 4, sub-paragraphs 1-8, his details of employment were set out in sub-paragraphs 9-12, they were spoken too as well by Mr Farrington in the plea.

15Insofar as his personal background is concerned, that was also detailed by
Dr Cunningham, on p.1 of his report, Exhibit 1, and also, as I have said, by
Mr Farrington in his plea.

16It was submitted that Mr Ovadia, having come to Australia, was a person who was at all times a keen worker and a keen person to upgrade his qualifications, which he did.  As a result of such qualifications he became entitled in Australia to work as both a heating and refrigeration mechanic and, indeed, worked with a company in that regard to 2005.  He then conducted his own business by way of furniture removal, from the period 2005-2011.  It was at about that time that difficulties came into his life both by way of relationship and coping with a business, which I will talk about later when I refer to Dr Cunningham's report.

17After 2011, he went back, to use his words, "to the tools" and has been conducting his own heating and refrigeration cooling company, and been working very hard in that since. And as put by counsel, has prospered financially because he has worked hard and is a person who is prepared to do so and to apply himself to such a task.

18It was stressed by Mr Farrington that Mr Ovadia appears before the Court with no priors whatsoever, being of the age of 34.  He was, however, in his past drug addicted.  It is submitted that this is the basis and the reason for this criminality.  It appears from the materials I have read that such drug addiction was multi-faceted insofar as the types of drugs and would appear to have led to a certain recklessness about the conduct of his life.  It was that recklessness that
Mr Farrington put down to the circumstances leading to this criminality.

19Apparently, on the history given to Dr Cunningham, this addiction began firstly at the age of 25, and developed to the extent that at the time of this offending he was consuming one gram of cocaine per day. 

20As I said during the plea, and this was not disputed by Mr Farrington, it appeared to me that clearly he was trafficking to feed his own habit. It is suggested, and certainly that is the history given to Dr Cunningham, that since that time he has learned a very strong lesson and has not been subjecting himself to drugs, that is since being apprehended.

21Dr Cunningham's report is one of importance I think in determining the outcome of this case, and I want to refer to a number of matters mentioned therein.  Firstly, at p.2, he notes the ongoing family support, albeit I understand that precise details of his criminality has not been detailed, however he has a close association. 

22Dr Cunningham refers on p.2 to the education and vocational history that I have already referred to and states insofar as the furniture removal company that Mr Ovadia conducted that company for three years, on the instructions before me it seems to be longer than that, until, to use the doctor's words, "he crashed under the stress.  He stated he had to return to working on the tools."

23On p.3, as to mental state assessment, Dr Cunningham concluded that there was no mental illness, and the report was consistent with prior symptoms of depression and anxiety in the context of work and relationship distress.  On that page he also noted that Mr Ovadia has an average range non-verbal intelligence with no intellectual disability.

24Insofar as the offence behaviour, Mr Ovadia reported to the doctor that he was so high on GHB and cocaine during the period of this offending. 

25The doctor's summary and opinion was as follows.  This is on p.4:  "In my opinion, Mr Ovadia's offence behaviour occurred in the context of his drug abuse."

26He thought that, looking to the future, Mr Ovadia had several current protective factors that would reduce the risk factors and stabilise him within the community and improve his psychological functioning.  That is, firstly, he did not have any criminal priors.  Secondly, on instructions, he had remained abstinent from illicit substances.  Thirdly, he was working on his own, as I have described, as an electrician.  Fourthly, in the opinion of Dr Cunningham, "Mr Ovadia is motivated to remain abstinent from drug use."

27Clearly, as I have said, this is fundamental in the sense if you wish, Mr Ovadia, to not be in a position where you will be before the Court again, and facing risks to your own liberty, drugs have to eliminated totally from your life.

28Dr Cunningham said further in his last paragraph:

"That Mr Ovadia would benefit from a disposition that facilitated his rehabilitation."  Further he said, "That Mr Ovadia would benefit from continuing the rehabilitation in the community where he would benefit from psychological intervention to improve his ability to cope with stress and to source support for such.”

29Exhibit 2 was an occupational therapist's report.  One might have thought it had little to do with this case, however the manner in which it was utilised by
Mr Farrington was really to provide an example of, I suppose, the fortitude of his client who had had an injury to his right limb.  The report of OT, Exhibit 2, talks of his determination and personality to go back to work despite such injury. 

30As I understood the argument of Mr Farrington, it was that personality trait that was put to be the Court and it could be relied on, in conjunction with
Dr Cunningham's report as being a fact that the Court could take into account when considering whether Mr Ovadia was a person who the Court could be confident would be genuine about trying to rehabilitate himself, as Mr Farrington had been so instructed.

31Insofar as the plea was concerned, Mr Farrington spoke to the issues as to the discount involved in the guilty plea in this matter, that it was guilty plea on the first reasonable occasion after the Indictment had been amended.  He also submitted, as I have earlier referred to, that it was a very valuable plea given the issues as to the search of the car.

32Mr Farrington relied upon the issue of the two and a half year delay.  When questioned by me, the prosecutor could not really give an explanation for the time taken and the authorities indicate that there does not have to be an explanation, that the question of delay is still something where a person is seeking to rehabilitate himself that it is entitled to be taken into account where the prospect of a gaol sentence is hanging over a person for such a long time.

33The further submission was that based upon the report of Dr Cunningham, that he was an appropriate candidate for rehabilitation and, as I have said, clearly that is so provided he can rid himself of drugs.  It was submitted that he has been drug free since these offences occurred.  They were the instructions given to Mr Farrington and have been confirmed, as I have said, in the report to
Dr Cunningham. 

34There is no medical evidence provided to the Court of this matter.  There has been no urine samples provided, as is often the case when these allegations are made to the Court.  I discussed with Mr Farrington my concern about this.  My experience in these matters is that it is very hard for a person who has been so addicted to rid themselves of such a drug, and it is clear that if Mr Ovadia is to get a sentence which involves rehabilitation he would need assistance.

35As I say, there was no issue in regard to the sentence in regard to the lesser offences.  The learned prosecutor submitted that it would be an appropriate sentence for a community correction order to be imposed, insofar as Charge 1 is concerned, however he submitted, given the seriousness of such matter, that there be a term of immediate imprisonment.

36Mr Farrington submitted in all the circumstances that I should not take that course and I should apply a community correction order without any period of immediate imprisonment.  It was that point of difference which led me to, as I am required, to seek the report that is now Exhibit B.  That report has deemed Mr Ovadia as suitable for such a disposition and I thank the author of such report, Mr Chadwick, for the time in which it was taken and the diligence undertaken in providing that report to the Court.

37Ultimately, a determination as to the appropriate sentence in regard to
Charge 1 is a very difficult situation.  Courts generally are required, as authority from the Court of Appeal indicates, to deal very seriously with persons who traffic in drugs.  The purpose being of course that we hope, is that by dealing condignly in such circumstances, that persons will be, by way of general deterrence, stopped from involving themselves in such criminality.  However, the factors which must also be considered, apart from general deterrence, specific deterrence and denunciation of such crimes, are also important and these factors were put by Mr Farrington and that is rehabilitation.

38As Maxwell P said in DPP vTokava [2006] VSCA 156 in particular at [21]-[24]:

"It is in the community interest for successful rehabilitation to be effected by criminals.  It is also notorious that persons sentenced to gaol for the first time do run the risks in gaol of learning skills that they never had before."

39Such sentiments were further reflected in the words also of the President in R v Merrett & Ors [2007] VSCA 1, in particular at [49], where the President spoke of the great benefit to the community of a successful rehabilitation, especially in instances where persons have not been to gaol before and where there is a genuine chance of rehabilitation.

40As I said, the learned prosecutor, on behalf of the Director, did not oppose a sentence which involved a community correction order, provided, insofar as Charge 1 was concerned, there was an immediate period of gaol.  It is necessary in me determining this issue to take into account the particular principles set out in the Sentencing Act 1991 (Vic) and in this regard in particular ss.5(2), 5(4) and also 5(4)(c). Also the principles set out in s.7.

41Mr Farrington referred to the principles in Boulton & Ors v R [2014] VSCA 342 of which I am well acquainted. In particular the reference therein at [56] to the second reading speech, and to the submission made by the
Attorney-General to the Court in that hearing at [116]. The Court of Appeal in such case, in particular at [113]-[115] and then at [131] talk about the manner in which a CCO can be used to effect punishment and denunciation within the community and at the same assist and effect rehabilitation. That is, a sentence in the right circumstances can be structured whereby a community correction order can serve all of those purposes. It is of course a very difficult consideration when you have an offence as serious as this as detailed in Charge 1.

42However, after anxious consideration, I have taken the view, given the totality of the history put to me insofar as Mr Ovadia is concerned, his age and his achievements otherwise in this community, that he is an appropriate candidate for a community correction order, without any immediate term of imprisonment.

43Insofar as Charge 1 is concerned, I have determined that it is appropriate. 
Mr Andrianakis, I will not make these orders until I understand in the report that your client said that he understands and consents to those issues, but I am also going to impose a fine, so I will indicate what I intend to do and I will ask you to get his consent to that matter.

44MR ANDRIANAKIS:  Thank you.

45HIS HONOUR:  Insofar as Charge 1 is concerned, I intend to impose a community correction order for a period of four years.  To that community correction order will be added the following conditions:

46That he perform community service pursuant to s.48C for a period of 200 hours.  Usually I impose an intensive period in regard to such, but bearing in mind his employment responsibilities, I will simply say that that 200 hours has to be completed over the four years.  I would impose a drug and alcohol condition pursuant to 48D(3)(a), a rehabilitation and treatment condition; a condition requiring him to undergo any appropriate mental assistance under 48D(3)(e); a supervision condition under 48F.  He is to engage in criminal behaviour therapy under 48D(3)(f).  Under 48D(3)(g) any other treatment or programs designed by the officers to effect rehabilitation. 

47In addition to that matter, Mr Andrianakis, he will be required to pay a fine insofar as Charge 1 is concerned, in the sum of $5,000.  I am prepared in regard to that fine to extend a period of one year in which that is to be paid.

48Insofar as Charges 2, 3 and 4, a separate community correction order will be imposed for a period of two years.  Pursuant to s.41(1) the same conditions will apply as have been imposed in the other community correction order.

49I declare should Mr Ovadia consent to this community correction order being so imposed, pursuant to s.6AAA of the Sentencing Act 1991 (Vic) that had he not pleaded guilty there would have been no hesitation by this Court in imposing an immediate period of imprisonment. Perhaps while you are talking to him you might explain the difference and the importance of him pleading guilty in this case. Yes.

50Any queries, Mr Prosecutor?

51MR TRIANDOS:  No, Your Honour.

52HIS HONOUR:  I mean as to what I have said.

53MR TRIANDOS:  Yes.  No, Your Honour, I cannot see anything.

54MR ANDRIANAKIS:  Yes, Your Honour, I have explained the obligations and the commitment to my client.

55HIS HONOUR:  Yes, thank you.  All right, well they are the orders I made. 
Mr Ovadia, at your age coming before this Court in such a serious matter is an indication of what happens when you get drug addicted.  It is quite clear to you what you have got to do.  I am pretty confident we will not see you here again.

56Mr Prosecutor, what happened, did you seek a forensic order?

57MR TRIANDOS:  No, Your Honour, it is automatic.

58HIS HONOUR:  That is right.

59MR TRIANDOS:  I just mention that it was automatic.

60HIS HONOUR:  It is under the legislation now, is it not?

61MR TRIANDOS:  Correct, Your Honour.

62HIS HONOUR:  It saves us from worrying about that. 

63MR TRIANDOS:  Yes, Your Honour.

64HIS HONOUR:  All right.  I will have my associate have that prepared.

65Thank you, Mr Ovadia, I say in the nicest terms, we do not want to see you here again, all right.

66OFFENDER:  Thanks very much.

67HIS HONOUR:  Thank you.  Yes, thank you, Mr Tipstaff.

68(Disposal order signed and acknowledged.)

69(Section 464ZF order signed and acknowledged.)

70(Community correction orders signed and acknowledged.)

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