Director of Public Prosecutions v Petkovic, Byron
[2013] VCC 363
•26 March 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BYRON PETKOVIC |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 26 March 2013 | |
CASE MAY BE CITED AS: | DPP v Petkovic, Byron | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 363 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Lynch (Office of Public Prosecutions) | |
| For the Accused | Mr S Norton |
HIS HONOUR:
1 Byron John Petkovic, you have pleaded guilty to one count of trafficking in a drug of dependence of not less than a commercial quantity. That crime carries a maximum penalty of 25 years' imprisonment. You were 20 years of age at the time of the offending and are still only 21. You are obviously still a youthful person. You have no prior convictions of any relevance to this particular matter. You pleaded guilty at the earliest reasonable opportunity and I accept that that plea of guilty is accompanied by appropriate remorse and, indeed, you made admissions to police. You must also get the utilitarian benefit of that plea of guilty. All those matters go very much in your favour.
2 Pursuant to s.464Z of The Crimes Act I make an order that you provide a saliva sample for DNA purposes. I must advise you that, that order having been made if you refuse to comply with a request for same the police may use reasonable force to take it from you. That order is made and handed down.
3 I have now dealt with a number of people in relation to this particular offence and in these particular circumstances and I will detail those in a moment. The Crown opening can be annexed to these, my sentencing remarks, rather than go through it in great detail. A Mr McKinnell, it would appear, had been engaged in very significant trafficking of amphetamine and possibly other drugs over a period of time. You had got to know him, I am told from the Bar table, through a common interest in cars. In any event, you were aware of Mr McKinnell's proclivity for drug trafficking and on 30 May his girlfriend asked you to travel with McKinnell to Sydney.
4
The Crown submission was that you were aware that the trip was to purchase amphetamine and that you were at least reckless as to the quantity that would be purchased. It seems to me to the basis upon which it has proceeded and I think a very sensible one. You went in one car with McKinnell and two co-accused went in another vehicle. It was the intention of McKinnell to sell or trade the car that was being driven and to return with the other two
co-accused in their particular vehicle.
5 You made a number of phone calls on behalf of McKinnell on the way to Sydney and those phone calls clearly indicate that you were aware at least of the general purpose of the trip. McKinnell met with his supplier in Campbelltown outside of Sydney and purchased 1.1 kilograms of methamphetamine in two parcels. This Crown opening does not say what the basis of that was but my recollection is clear that it was in fact mixed and it was certainly not pure methamphetamine.
6 In any event, the amphetamine was brought back to Melbourne. You and others flew back. It was brought back by a truck driver called Gaudi, who I have already sentenced. You spoke to Gaudi on the phone on at least one occasion. Other co-accused met Gaudi when he arrived in Melbourne, you remaining at a hotel with one Bacon and with McKinnell. The surveillance was in place and Gaudi and two co-accused were arrested in a car park and the drugs seized as arrest was carried out by the SOG. The SOG then arrested you and others in a motel. I assume that being arrested by the SOG has been a somewhat salutary experience for you. In any event, you were then interviewed and made admissions. You remained in custody for a period of 125 days and were then bailed.
7 The offence objectively must be regarded as serious and clearly calls for an immediate custodial sentence. There is a need for general and specific deterrence, denunciation and obviously appropriate punishment. Tendered on your behalf were certificates of trades, or subjects to the trade, you have qualified for, clear urine samples and work references which indicate that there will work available to you in the near future.
8 I simply start by pointing out that you have now been on bail for six months, reporting daily, and that is a significant burden in itself. You would appear to have been keeping out of trouble. You have very strong family support which has been evidenced by their attendance here at court today. You are a person who has completed successfully a carpentry apprenticeship and you wish to work in the building trade. You left school at 16 and you have essentially kept out of trouble other than for some matters involving a motor vehicle which does not involve dishonesty or drugs or anything along those lines. The references indicated that there is work available to you. The only time you have been unemployed was around about the time of this offending.
9
The fact of the matter is that you, I think, have really good prospects for rehabilitation. I think that the Crown range of six to 12 months on the bottom is the correct one. The co-accused were sentenced as follows: Mr Gaudi, who drove the drugs to Melbourne, 12 months with a six month minimum;
Mr Hepburn with a very similar role to yours, 272 days; and Mr Bacon, 287 days, again with a similar role to you. They were sentenced to periods of time served. Had they served less they may well have got lesser sentences. Also, they were given sentences without a head sentence and that is the range in which I think you fit.
10 The difficulty is that I can see no useful purpose being served in returning you to custody for, what would basically be, a couple of months. The submission on your behalf was that a community corrections order, plus the gaol that you have already done, would be sufficient. I am advised in another matter that where a community corrections order is to be imposed, together with a custodial sentence, the custodial sentence can be longer than 90 days as long as it is declared as PSD. In this particular situation that is what I propose to do.
11 Accordingly, on the charge of trafficking a commercial quantity, you are sentenced to be imprisoned for a period of 125 days. I direct that 125 days be reckoned as having been served under that sentence. In addition, you are to be placed, if you agree, on a community corrections order. That corrections order will be with conviction and would incorporate the condition of 200 work hours over a period of two years. That is a significant number of work hours but I should indicate to you what will happen if you breach the CCO.
12 If you breach it and you are brought back for further offending and your counsel will explain the conditions of it to you in detail. If you are brought back because you have breached it through anything related to drugs, you are going in again. All right? Just so we understand each other and you will be going in again for months. All right?
13 PRISONER: Yes.
14 HIS HONOUR: That is what will happen if you breach it. I think that a community corrections order with that significant amount of work hours, which over two years gives a degree of, I suppose room to move, in terms of how you do it is the way of going about it. If you are going to be working as a tradie you may well need to work on certain weekends and I have tried to take that into account. That is the punishment that is involved and I think in this particular situation is the appropriate one.
15 Just so it clearly understood what would have happened if you had tried to fight this out. Pursuant to s.6AAA of The Crimes Act I say that but for your plea of guilty you would have been sentenced to imprisonment for a period of 18 months with a 12 month minimum. So that is the benefit that your plea of guilty has got you.
16 PRISONER: Yes.
17 HIS HONOUR: Are there any other orders I need to make, gentlemen?
18 COUNSEL: No, Your Honour.
19 HIS HONOUR: Then just sign the CCO.
20 MR NORTON: Your Honour, could I just make one enquiry?
21 HIS HONOUR: Yes.
22 MR NORTON: Just with respect to the time served issue. Is that reflected in the legislation or is it in the corrections regulation or - Your Honour indicated in the sentence that you had been advised in another matter.
23 HIS HONOUR: Yes.
24 MR NORTON: I just want to make sure I got - - -
25 HIS HONOUR: With - who was that? It was a joint submission by Crown and defence. I think what it means, because it has been declared as - what you cannot do is have a community corrections order starting more than three months from now, all right? And you cannot suspend the sentence. But what you can do is if I give a term of imprisonment I could, for example, now in this situation give him seven months and a CCO because I will declaring four months of it. It is the three months from the day of sentence that matters and you cannot suspend it.
26 MR NORTON: Yes.
27 HIS HONOUR: All right? So, it is a matter of logic. There is a - I do not know. Pam might be able to get it for you. But there is a decision on it or there is something.
28 MR NORTON: I will look into it. Thank you, Your Honour.
29 HIS HONOUR: Yes. But it has got to be declared. If there is no PSD you cannot do it.
30 MR NORTON: So it is all about the distance away to start of the order.
31 HIS HONOUR: It is about the distance away and the starting of the CCO, yes.
32 MR NORTON: Thank you, Your Honour.
33 HIS HONOUR: And the non-suspending of it.
34 MR NORTON: Yes.
35 HIS HONOUR: If you just get that signed. I assume you will explain it all to your client in detail.
36 MR NORTON: Yes, Your Honour.
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