Director of Public Prosecutions v Polos
[2023] VCC 2422
•22 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01302
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IVAN POLOS |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 28 September and 17 November 2023 | |
DATE OF SENTENCE: | 22 December 2023 | |
CASE MAY BE CITED AS: | DPP v Polos | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2422 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Trafficking in a commercial quantity and possession of a drug of dependence, together with two summary charges of possessing proceeds of crime and failing to comply with a police direction to provide a PIN code for mobile phones – lengthy criminal history of drug and dishonesty offences
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited:Bugmys case and Verdins case.
Sentence: Total Effective Sentence is 8 years and 8 months’ imprisonment with a 5 year and 5 month non-parole period.
s6AAA: 11 years imprisonment with an 8 year non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Dickens | Solicitor for the Director of Public Prosecutions |
| For the Offender On 28/9/2023 | Mr P Dunn QC with Mr J Morrisey SC with | Theo Magazis and Associates |
HER HONOUR:
1Ivan Polos, you have pleaded guilty to two charges of trafficking in a drug of dependence in a commercial quantity, each of which carries a maximum penalty of 25 years’ imprisonment, and one charge of possessing a drug of dependence, which carries a maximum penalty of 5 years imprisonment or 400 penalty units where, as in your case, the court is not satisfied, on the balance of probabilities that the drug was not possessed for the purpose of trafficking.
2In addition, you have consented to two summary charges being uplifted to be heard in this Court and have pleaded guilty to those charges. Charge 5 is a charge of possessing the proceeds of crime, which carries a maximum penalty of two years’ imprisonment. Charge 6 is a charge of failing to comply with a police direction to provide the PIN number for mobile phones, which carries a maximum penalty of two years’ imprisonment.
3The circumstances of your offending are detailed in the Summary of Prosecution Opening.[1]
[1]Exhibit “A”
4In November 2020, Victoria Police Clandestine Laboratory Squad commenced an operation to investigate the trafficking of illicit drugs in the northern suburbs of Melbourne. You were detected trafficking drugs of dependence from your own home at 49 Greenhaven Drive, Greenvale, from your mother’s home at 13 Wattleview Road, Roxburgh Park, and from various motor vehicles. The vehicles include ones which were rented, privately owned, stolen or registered in the names of third parties. Each of the charges of trafficking in a commercial quantity of drugs to which you have pleaded guilty took place over approximately three months from 6 September 2021 to 1 December 2021
5Charge 1 relates to trafficking in 1,4-Butanediol in a total quantity of 49.35 kilograms, where a commercial quantity comprises 2 kilograms.
6The total quantity comprises amounts which were identified by police in phone calls and SMS messages intercepted. These were variously between you and your two co-accused, Jessica Kemp and Patricia Martin, as well as amounts of this drug found at your mother’s home and your home when police executed search warrants at those addresses. Amounts of 1,4-Butanediol were also found at Kemp’s address, but these relate to quantities mentioned in the previous phone calls and messages.
7Charge 2 relates to trafficking in methylamphetamine in a total quantity of 506.47 grams (mixed), where a commercial quantity comprises 250 grams (mixed). The total quantity comprises amounts identified in the previously mentioned phone calls and messages between yourself and co-offenders, as well as 9.1 grams of methylamphetamine inside a bag which you had when police arrested you on 1 December 2021, and another gram of methylamphetamine found in the letterbox of your home when police executed a search warrant.
8It should be noted in relation to both Charges 1 and 2, that although the phone calls and messages between yourself and co-accused identified amounts in excess of a large commercial quantity, the prosecution has conceded that it could not establish that you intended to traffick in a large commercial quantity, as distinct from a commercial quantity.
9Charge 3, possession of 3,4-Methyelinedioxy-N-Methylamphetamine (MDMA), comprises an amount of 2.6 grams of that drug in a press-sealed bag located by police when they executed a search warrant at your home address. The prosecution submitted that, given the totality of your offending in this drug trafficking business, that the court should not be satisfied on the balance of probabilities that this was possessed for personal use. Mr Morrissey of senior counsel who appeared on your behalf on the second date of the plea hearing conceded that defence could not discharge the onus of proving that it was for personal use. Accordingly, the maximum penalty applicable is that which I stated at the outset of these sentencing remarks.
10Summary Charge 5, dealing with property, namely $3,815, cash suspected of being the proceeds of crime, relates to an amount of $1,365 which you had in your wallet when arrested, and a further $2,450 located by police at your home.
11Summary Charge 6, failing to comply with the direction of police when asked for a PIN number to access data on phones, relates to your refusal to provide a PIN number for two mobile phones utilised by you in your offending when asked to do so by police, even after being warned that it was an offence to refuse to do so.
12Following your arrest on 1 December 2022, you were taken to Melbourne West Police Station to be interviewed. You provided “no comment” answers to police questions, which is your legal entitlement. On the morning of a committal hearing scheduled to be conducted on 25 July 2022, you indicated your intention to plead guilty to the offences for which I must sentence you.
13You are presently aged 33 years, having been born in August 1990. You have admitted a criminal history comprising a host of offences, primarily drug, dishonesty, weapon and driving offences. Over the years, you have received sentences of five months’ detention in a Youth Training Centre, five months’ imprisonment, one year and six months’ imprisonment with a non-parole period of 10 months, two months’ imprisonment wholly suspended, one year and six months’ imprisonment with a non-parole period of eight months, one year and six months’ imprisonment with a non-parole period of 12 months, 156 days’ imprisonment together with a 15-month Community Correction Order, 76 days’ imprisonment and 62 days’ imprisonment.
14You have many prior convictions for possessing illicit drugs and four prior convictions for trafficking. It is of concern, that partway through the three month period of offending, on 4 November 2021 you had been brought before Broadmeadows Magistrates’ Court for possession of illicit drugs, trafficking, dealing with the proceeds of crime and also contravention of a Community Correction Order which had been given to you on 21 October 2019. On the contravention charge, you were convicted and the Community Correction Order was varied to continue until 3 February 2023. It is an aggravating feature of your offending that you continued to traffick in both methylamphetamine and 1,4-Butanediol and committed the other offences for which I must sentence you whilst ostensibly undertaking that Community Correction Order.
15In a plea on your behalf by Mr Dunn of Senior Counsel on 28 September 2023, a number of matters were put in mitigation of sentence. These included the following:
(a) Your early plea of guilty, which is said to have utilitarian value, as well as being indicative of remorse.
(b) A background of disadvantage which included you having been born in Iraq and being part of your family unit, who fled from the Gulf War, transited through other countries and, ultimately, arrived in Australia when you were four or five years old. Your father was an alcoholic with a gambling problem and you struggled to learn English and progress at school. By Year 8, your behaviour had resulted in you being expelled, and allegedly no other school was prepared to enrol you as a student because of such behaviour.
(c) At age 16 years you commenced using the drug ice, which is said to have been a daily habit by the age of 17 and connected with your background of poor health and trauma. It is alleged, that by approximately age 25, you had begun to rely upon 1,4-Butanediol (which metabolises as GHB) in order to manage your mood.
(d) You were diagnosed with Crohn’s disease during childhood which is said to have necessitated several surgeries, medication and a special diet. It is alleged that part of your motivation for using ice was to assist in managing the chronic pain from this disease.
(e) At age 17 or 18 you are alleged to have been held hostage and tortured over a period of days and only released after your family paid a ransom of some $20,000. This, amongst other factors, is said to have resulted in you requiring emergency surgery, suffering Post-Traumatic Stress Disorder and a Major Depressive Disorder.
(f) You are said to have suffered a long standing learning disability and were most recently assessed by a neuropsychologist, Dr Sara Fratti, from ARBIAS as having a full scale IQ of 70 per cent. This falls in the extremely low to borderline range of intelligence and qualifies as a mild cognitive impairment.[2]
(g) A combination of your psychological and mental impairment is submitted to be linked to you having self-medicated by abusing illicit drugs and alcohol from your mid-teens. In that sense, it was submitted that your impairments are linked to your offending. Hence, it is argued that your moral culpability is lessened in accordance with the principles in Bugmy v R.[3]
[2]Exhibit “3”
[3](2013) 249 CLR 571
(h) Given your mental health diagnosis, the burden of imprisonment is greater for you than for someone without those issues and there is a risk of deterioration in your mental health whilst in custody, such that principles 5 and 6 R v Verdins; R v Buckley;[4] have application.
[4](2007) 16 VR 269
16A report from Dr Sara Fratti, senior clinical neuropsychologist with ARBIAS dated 24 April 2023 was tendered.[5] Although she had assessed your full scale IQ to be in the extremely low to borderline range, consistent with longstanding cognitive weakness, she did not consider this to be the most meaningful or valid measure to describe your intellectual function, as your speed of processing was significantly weaker than your other abilities. Indeed, she noted that some of your ability scores appeared to have improved from baseline since you last underwent cognitive testing in 2015 by Mr Cunningham, who had assessed your full scale IQ as being 69 per cent. She had noted past risk factors for cognitive impairment in the form of polysubstance abuse and past head trauma, although thought the latter was not severe enough to warrant significant loss of consciousness or ICU admissions. She stated “It appears that his experience of psychosocial trauma and early onset of heavy alcohol and polysubstance use likely compromised aspects of his psychosocial, personality, emotional and cognitive development during his formative years.”[6] However, she also stated “in my opinion, Mr Polos’ pattern of deficits is unlikely to be due to an intellectual disability or neurodevelopmental disorder. His early developmental history and formative years are not indicative of widespread intellectual or adaptive functioning deficits, as is often the case with mild ID. His self-reported cognitive and behavioural problems seemed largely the result of early alcohol and heavy illicit substance use from his mid-teens. My impression is that the deficits observed on current testing are the result of a mild acquired brain injury due to polysubstance use, in combination with ongoing mental health factors. An ABI is a permanent condition that tends to develop over time and was most likely present at the time of Mr Polos’ offending. The impact from previous head trauma cannot be excluded, although it seems that Mr Polos suffered from mild concussion type injuries from which most individuals tend to recover well.”[7]
[5]Exhibit “3”
[6](Ibid), page 7, paragraph [37]
[7](Ibid), page 8, paragraph [38]
17A report from Dr Aaron Cunningham, forensic psychologist, dated 11 November 2015, had been provided to Mr Luke Armstrong, consulting psychologist, by your present solicitors for the purposes of Mr Armstrong preparing his assessment of you in a report dated 24 September 2023. As your counsel relied upon Mr Armstrong’s report, it was appropriate that Mr Cunningham’s report be tendered.[8] However, an earlier report dated 21 May 2021 referred to in it, is unavailable to your current solicitors. Another report by Mr Warren Simmons, psychologist, dated 6 August 2019, which, also, had been provided to Mr Armstrong, was tendered and marked as well.[9]
[8]Exhibit “5”
[9]Exhibit “1”.
18Dr Cunningham had noted a history of you suffering a broken leg and head injury and hospitalisation following a car accident at the age of 21 (presumably around 2011 or 2012). You allegedly had been knocked unconscious by being hit on the head with a hammer some three or four years prior to Dr Cunningham seeing you on November 2015, and also had been assaulted in Fulham Prison by being “bottled”, leaving a scar on your left eye. On testing, he assessed your full-scale IQ as being 69, that is, cognitive functioning in the extremely low range of intellectual functioning. He opined that you also presented with symptoms of depression, and anxiety and paranoia. He considered that you had a generalised impairment in relation to problem solving and consequential thinking and noted that you continued to abuse drugs and experience instability related to such abuse.
19Dr Cunningham had noted that you had begun to use methylamphetamine at age 16 in order to take your mind off the chronic pain related to your Crohn’s disease, for which you had undergone two surgeries. He recorded that you had been using half a gram of methylamphetamine per day at that stage, but claimed to be “finished with drugs” because they had resulted in your imprisonment. He considered that you suffered a Substance Use Disorder with prior psychological and physiological dependence upon methylamphetamine. He recommended that you be case managed by Disability Services, as well as engaging with drug and alcohol counselling and employment.
20At the request of your solicitors, you had been assessed by Mr Warren Simmons, psychologist, back on 6 August 2019, presumably in preparation for a plea hearing at Broadmeadows Magistrates’ Court on 21 October 2019 for a number of dishonesty, driving and drug offences, including trafficking. Your criminal history indicates that, on that day, having apparently served an aggregate of 156 days’ imprisonment, you were sentenced to undertake a Community Correction Order for a period of 15 months, with supervision and assessment and treatment and regular and random drug testing. On 4 November 2021, you were brought before that same court for contravention of that order, which was varied by it being continued to 3 February 2023.
21Mr Simmons took a history that you had described your childhood as good, indicating that your father worked hard, although he was perhaps excessively strict and “bashed” you if you did not behave, which was most days. You described your misbehaviour as being attributable to being bored and harassed by older people in the area. He took a history that there was no domestic violence, although your father drank a couple of glasses of wine at night, primarily to help with sleep. You told him that you were an attention seeker and always showing off at school because you wanted to fit in and you were popular with your peers because of your behaviour. You were expelled from Roxburgh Park College at the beginning of Year 8. This related to an incident on a bus where a friend had become involved in an argument with someone else and you assaulted that person. You stated, that although you attempted to re-enrol at other schools, you were not accepted. You then enrolled in a TAFE course at Coburg, attempting Certificate III in Motor Mechanics but did not complete it, explaining that you spent time with “the wrong crowd” and were too distracted to apply yourself.
22You told Mr Simmons that you had worked with your father in the past and, at that time, purchased cars from various auctions and repaired them and resold them for a profit, which kept you fairly busy albeit that you apparently were also in receipt of Newstart payments. He also noted that you had been with your current partner, Lauren, since the age of 17, that you had married in 2013, and that you had “played up a lot”, even though she was very supportive and you have three children together.
23Mr Simmons noted that you commenced smoking cannabis at age 16, but did not really enjoy it and only used it because others tended to smoke it and, over the years, your use of it had been limited and was now essentially non-existent. However, you stated that others had introduced you to methylamphetamine at age 16 and you smoked it to fit in and admitted daily use, although you were not able to recall the exact amount. At its peak, you were having 4 or 5 grams, but generally it might be one or two points once or twice a fortnight. You had been ingesting GHB daily for the last five years, having 1 to 1-1/2 mls a day after being introduced to it by friends. You claimed it helps balance out the ice and helps with feelings of anxiety and depression.
24Interestingly, you told Mr Simmons that you had undertaken a period of residential rehabilitation at the Well-Being Planet, where you had remained for four to six weeks whilst on bail and considered that the program helped you and you reduced your use a great deal and reported a period of abstinence of nine months. I here interpolate that this is contrary to what Mr Dunn stated on the first day of the plea hearing on 28 September 2023, namely, that this so-called rehabilitation centre was not what it claimed to be, but rather was a methylamphetamine lab and that it had done you no good.
25Mr Simmons took a history that you had been born in Iraq and migrated to Australia at the age of four, claiming “some memories of the war in (your) homeland although these appear to be fleeting”. You had described your childhood as unremarkable and Mr Simmons noted no clear evidence of either neglect or abuse. He stated “while discipline was often physical, it would seem that this was more of a cultural practice rather than indicative of an abusive nature.” He did note that you had been diagnosed with Crohn’s disease for which you had apparently undergone surgery at age seven years in order to have part of your bowel removed and had ongoing pain and cramps which affect your mood. He also noted that, academically, you had a history of difficulties because you had been an attention seeker and tried to be popular. He noted that Dr Simon Kennedy, in a report dated 11 November 2015 (which was not available to the Court), had tested your intelligence, indicating that you were just within the mildly disabled range.
26Mr Simmons stated that there appeared to be little in your childhood that would have left you vulnerable to substance use, other than moving from a country that had a markedly different cultural outlook to Australia and that you had revealed that you were influenced by others in relation to drugs and continued to use them to fit in, and had developed problems with dependence such that you met the criteria for a Substance Use Disorder, involving methylamphetamine, cannabis and GHB. He considered that your substance use was more influenced by peers when socialising. He thought you had experienced some depressive symptoms, potentially related to ongoing issues with your Crohn’s disease. He queried whether you might be eligible for disability services, but did not think it was clear that you would necessarily meet the criteria of deficits in adaptive functioning. He considered that your pattern of offending appeared to be related to drugs or driving and, at times, demonstrated poor judgment. He noted Dr Kennedy’s opinion that you have difficulties with overall problem solving and consequential thinking and that you are vulnerable and susceptible to negative influences, which appeared to fit with your history of using drugs under the influence of others in order to fit in.
27A report of a psychological assessment made of you by Carla Ferrari embodied in a report dated 29 August 2022 was tendered.[10] Ms Ferrari took a history that you are able to recall traumatic experiences in Iraq, including breaking your leg jumping from a roof where you were hiding, witnessed and heard shootings and bombings, reported that family members were kidnapped and your maternal uncle was shot and killed in front of you and other family members. I here interpolate that in a chronology given to the Court by your counsel,[11] it is said that your family fled Mosul because of the Gulf War and were in Turkey for three months, before you arrived in Athens on 22 September 1993. This would have been shortly after your third birthday. In 1995, at the age of 5 years, and you arrived in Australia with your parents, one younger sister and one younger brother. The history of trauma you gave to Ms Ferrari was not mentioned in the report from Mr Cunningham dated 11 November 2015 and, as previously noted, when Mr Simmons saw you in 2019 he stated that you revealed “having some memories of the war in (your) homeland, although these appear to be fleeting.”[12]
[10]Exhibit “4”
[11]Marked for Identification “2”
[12]Exhibit “1”, page 4, paragraph [20]
28Dr Fratti recorded in her report dated 24 April 2023 that you were raised in Iraq until age four and “reported history of trauma, having witnessed shootings and bombings while in Iraq, including the kidnapping and killing of family members.” Also, she stated that you had described your father as “an abusive man who drank and gambled heavily and who would often become physically, verbally and emotionally abusive towards his children and his wife.”[13]
[13]Exhibit “3”, page 2, paragraphs [1] +[3]
29In her report, Ms Ferrari also stated that your parents relationship was difficult because of your father’s alcoholism and aggression and that he often physically, emotionally and verbally abused you, in particular, as you were the eldest. You claimed to have sustained significant burns requiring medical treatment after your father placed a heated metal spoon on your skin as punishment. She noted that this history was a contrast to that which you had given Mr Simmons, namely, that your childhood was “good” and your father worked hard and although he would “bash” you if you did not behave, the reason for your misbehaviour was because you were bored and harassed by older people in the area.[14] You apparently told Ms Ferrari that you “did not feel comfortable disclosing the extent of (your) abusive childhood” at that time, but maintained that your father drank daily and gambled frequently and often assaulted your mother and you would intervene to protect her.[15]
[14]Exhibit “1”, page 2, paragraphs [3-4]
[15]Exhibit “4”, page 3
30Ms Ferrari recorded that you found adjustment to Australia difficult because you did not speak English, and started truanting and associating with a negative peer group. After you were involved in a fight on a bus with another individual whom you allege was discriminating against your religion, you were expelled and not accepted into any other school. Again, I interpolate that this differs somewhat from the history given to Mr Simmons, namely, that a friend had become involved in an argument with someone and so you struck that person.[16]
[16]Exhibit “1”, page 2, paragraph [7]
31Ms Ferrari noted that, after leaving school, you completed Certificates III and IV in Motor Mechanics at TAFE. Again, this differs somewhat from the history to Mr Simmons, which was that you did not complete those courses because you spent too much time with the wrong crowd and were too distracted to apply yourself.[17] Ms Ferrari noted that you worked for your father in his stonemason business for four years. This ceased because of your drug use and antisocial peers. You have not held stable employment since, except for six months in the construction industry and buying and selling cars at auction. She noted that you had been on a Disability Support Pension for Crohn’s disease for a while, but this ceased after you married. In 2020 you had established a tow truck business, but claimed that this was adversely impacted upon by the pandemic.
[17]Exhibit “1”, page 2, paragraph [8]
32Ms Ferrari took a history that you had experienced a traumatic episode at age 18, when you were held hostage and tortured for several days by a known crime family in your area. This included you being force-fed methylamphetamine and experiencing, protracted sleeplessness and drug induced psychosis. You claimed, also, that you had been bashed and sustained head injuries after being hit with a hammer and held at gunpoint. You told her that your Crohn’s disease was exacerbated due to the poor diet and stress and you had required immediate surgery after your parents paid the criminals a ransom of $20,000 to release you.
33Ms Ferrari also took a history that you had suffered a head injury in a motorbike accident between the age of 20 and 22 and broke your ankle, but left hospital before you underwent neuroimaging. You also sustained a fractured leg and another head injury, including alleged loss of consciousness when you were a passenger in a motor vehicle accident at age 25. You told her that you had been given a prescription of Lyrica for nerve damage because of injury to your back and neck, but as you began to abuse this (up to 3,000 mg per day), you had to cease and replaced this addiction with methylamphetamine.
34Ms Ferrari noted that you had begun to consume alcohol and smoke cannabis from age 17 and, at that same age, began using methylamphetamine because you associated with “the wrong people”. You appear to have provided multiple explanations for your use of amphetamine. These include having used it to “ingratiate” yourself with other users or to calm your anxiety or to help with pain from your Crohn’s disease, and trafficking in it to fund your gambling problem. You maintained that your average use was between three and four grams per day. I interpolate that this is at odds with the history which you gave to an alcohol and drug assessor, Ms Kay Burke from The Cottage on 11 March 2022, namely, that you were taking one to two grams a day until you were remanded in custody.[18]
[18]Exhibit “11”
35You told Ms Ferrari that, during the period of your offending, your mental health had deteriorated because you were experiencing financial hardship after establishing your tow truck business which you were then unable to operate during the pandemic, you were struggling with Crohn’s disease for which you were unable to get hospital treatment because of the pandemic, and you began to experience depression and anxiety as to how you were going to support your family. In addition, your brother, who was on parole, relapsed into substance use and received a six year sentence of imprisonment with a three year non-parole period. You claimed that it was in the context of these stressors that you relapsed into substance use. You claimed that you had contacted The Cottage Rehabilitation Centre in August 2021, but they were not accepting self-referrals and you “felt let down by the system”. You claim that the offending was “to fund (your) own habit and support (your) family”.
36On a self-report questionnaire, Ms Ferrari noted that your score was indicative of moderate depressive symptoms, moderate symptoms of a generalised anxiety disorder and that your risk of drug dependence was high during the period encompassing the offending. Also, she noted that your self-report indicated a number of Post-Traumatic Stress Disorder symptoms: re-experiencing intrusive symptoms, avoidance, negative alterations in cognitions and mood and hyperarousal.
37Ms Ferrari’s report did not contain any detail as to the content of these alleged symptoms or what incidents or events had allegedly given rise to them. However, later in her report she stated: “Mr Polos presents with symptoms consistent with Post-Traumatic Stress Disorder (PTSD) not only as a result of his early experiences but also following a significant event at age 18 in which he feared for his life after being abducted, held hostage and tortured for a week. He also exhibits a chronic pattern of low mood suggestive of Persistent Depression Disorder (PDD).”[19]
[19]Exhibit “4”, p 9, para 96.
38Under the heading “Diagnostic Impressions (my emphasis)”, Ms Ferrari “hypothesised” (my emphasis) that the following DSM-5 diagnoses are indicated: Post-Traumatic Stress Disorder, Stimulant Use Disorder (amphetamine type), Sedative, Hypnotic, Anxiolytic Use Disorder and Persistent Depressive Disorder, along with an Intellectual Impairment. She noted that your symptoms of emotional dysregulation associated with depression, PTSD, anxiety and intellectual disability commonly impair problem solving and healthy information processing and can lead to an increase in negative emotions and a decrease in prosocial responses.
39She stated that symptoms of these conditions are prone to exacerbation in times of stress and noted that your insight into your own emotional functioning is reduced which limits your “help-seeking behaviours and access to much needed professional support.” She stated “it is inferred (my emphasis) that he has sought temporary solace of his symptoms via substance use developing Stimulant and Sedative Hypnotic Anxiolytic Use Disorders.” [20] She opined that given your history of substance abuse from age 17 it is likely that there had been deleterious effects on your prefrontal cortex and the emotional centres of the brain resulting in a fixed pattern of repetitive, impulsive, unpredictable behaviour.
[20]Ibid p.10, para 100.
40I here interpolate that the offending which is the subject of the agreed facts in the prosecution opening does not appear to have been impulsive or unpredictable behaviour, as distinct from an organised drug trafficking business involving three different premises, two phones, multiple different motor vehicles and two female assistants. Notwithstanding this, Ms Ferrari stated, “It is clear (my emphasis) that his untreated mental health has played a significant underlying role in his offending, as well as having perpetuated his substance use as a method of coping. His ID is considered to have particular implications for his history of offending.”[21]
[21]????
41She considered that you were at moderate risk of reoffending if your mental health remained untreated. She noted that protective factors were your desire to address your criminogenic risk factors and that your wife had recently given you an ultimatum that she will no longer support you if you relapse into drug use and offending again.
42Ms Ferrari considered that your mental health conditions and mild intellectual disability would make imprisonment more difficult for you and that the prison environment could trigger your mood dysregulation and exacerbate your Persistent Depressive Disorder, as well as your Post-Traumatic Stress Disorder. She noted that you are currently engaging in AOD counselling with Ms Karly Doyle. I here note that a brief report from Ms Doyle dated 24 February 2023 confirmed that you had attended six sessions with her via teleconference from Port Phillip Prison between 23 June and 28 October 2022. She noted your history that drug use was largely normalised in your neighbourhood amongst your peers and that, prior to your arrest in December 2021, you were engaging in daily use of methylamphetamine, Lyrica, Valium and GHB. You claimed that drugs boosted your levels of energy whilst also numbing memories of painful traumas relating to regular childhood beatings at the hands of your father whom you described as a violent alcoholic, as well as providing pain relief from Crohn’s disease.
43At the plea hearing held on 28 September 2023, a report by Mr Luke Armstrong, psychologist, dated 24 September 2023, was tendered.[22] He noted that aspects of the histories in Dr Cunningham’s 2015 report and Mr Simmons’ 2019 report had histories which appeared to be at odds with the subsequent report of Ms Ferrari in 2022 relating to significant child abuse. He also noted that Dr Fratti, neuropsychologist, appeared to attribute limited relevance to your disclosures of family violence. He stated:
“… given the longitudinal nature of [his] experience of family abuse, and the fact that [his] experience of familial abuse was pivotal to [his] shift away from the family and into drug use, and related criminal activity, [his] familial experiences are central to understanding [his] trajectory of drug abuse and offending, including [his] experience of mental illness. For this reason, [I] interviewed [he] extensively on the subject and corroborated [he] disclosures with family.”
[22]Exhibit 5
44He went on to state that you explained the discrepancies in your disclosures to previous clinicians by saying that you were worried that, if you disclosed these, your father would be charged by police, but you had since “reconciled” that now your father had developed dementia, it is unlikely he would be charged by police and therefore you can now comfortably disclose your experience of child abuse. He went on to state that you gave a history about your father that: “… Whilst [he was] no longer than 4 years of age [he] vividly [recalls] instances of significant family violence, as well as [his] recollections of direct exposure to civil war in Iraq. … .”
45He also made reference to you recalling the heated-up spoon incident which burned your hand and, when your mother made attempts to intervene, you had fled through a window and fallen from the roof of the family home and broken your leg. You also disclosed direct memories of shooting violence before the family fled Iraq and stated that your mother had reported an incident in 1992, when you were in your cot when a bomb detonated within the village and the floor of your home collapsed. He expressed the view that these extreme events or memories have had a significant destabilising effect on your: “… biological and identity development, either through [your] direct exposure or witnessing of these events; [your] vicarious trauma through being a direct witness of [your][ parent’s exposure to these events; and or [you] having exposure to the family’s experience of trauma related arousal over a long period of time.”
46Mr Armstrong went on to describe that you feared your father’s violence on a daily basis, as he would enter your bedroom and use a belt on you and your father lost control regularly, as “spit would be coming out of his mouth”. You described to Mr Armstrong other events where you had seen a male on a public bus with a derogatory t-shirt depicting “Jesus having his throat cut” and you started a fight with that person I here interpolate that this is contrary to the history which you had given to Mr Simmons. Mr Armstrong recorded multiple other examples of your father’s violent behaviour and stated of you that:
“In the very least, it would seem that [he] learned that [his] own survival would depend on [his] capacity to develop a level of street smart or instinct.”
47He stated that you “first experimented with cannabis from 13 years, however did not engage in regular use”. This would appear to be inconsistent with some of your other histories. Mr Armstrong went onto note that: “It would appear that as [he] became increasingly alienated from the family home, [he] began to associate more and more with an older deviant and violent peer group.” These were “serious drug users and/or violent offenders” and, from when you were first given ice at around sixteen years, you reported that it rapidly increased to daily use on a very heavy basis. Mr Armstrong stated that you regarded these violent people. whom you had witnessed torture drug associates who owed money, to be your family (your “brothers”). Mr Armstrong then recorded the following:
“He suspected that one of the brothers stole an amount of drugs and then accused him of the theft. He recalls he was lured by associates, assaulted and placed in the boot of a car. He was then taken to a ‘trap house’ where [you were] bound to a chair and assaulted by the brothers and associates over the course of three days. He alleges he lost consciousness at least twice as a result of being assaulted with lengths of timber. He recalls that [he] in fact urinated [himself] within the context of one particularly savage assault during the course of [his] kidnapping experience.”
48Mr Armstrong went on to record that you could not escape because of the state of your legs after the assaults, claiming that you were stabbed in the legs and arms. Eventually, your capturers demanded a ransom of $20,000 and gold from your family and your family raised the sum of $20,000 via a loan, but, prior to release, you were forced to consume a large amount of ice, became psychotic, attempted suicide by hanging and remained awake for approximately fifteen days.
49Mr Armstrong then went on to state the following:
“This incident was corroborated with [his] partner Lauren who confirms that [he] went missing as a consequence of being kidnapped, and when [he] returned [he was] ‘black and blue’ as a consequence of severe assault. Lauren reports that [he] remained in [his] room for three months following the incident, and in fact [he] would not leave the home. She reports that [you] had not long been together and she believes [he was] a changed person in the aftermath of this event.”
50Mr Armstrong took a history that, following the kidnapping, you desisted from illicit drug use for approximately two years, but then began to demonstrate signs of Post-Traumatic Stress Disorder by way of recurrent involuntary and intrusive visual memories of your experience. You ultimately relapsed and, from about age 21 to 22, developed a significant poly-substance abuse problem. You told Mr Armstrong that you believed you developed Crohn’s disease as a consequence of the severe assault.
51I here interpolate that hospital records show that you had had inflammatory bowel disease when you were 15 years old[23] which was ultimately diagnosed as Crohn’s Disease in 2006, when you were 16 years old.[24] The multiple records of hospital and medical treatment over some years showed that you were largely non-compliant with treatment for your Crohns disease and, in fact, disengaged from follow up for lengthy period of time. An admission on 28 February 2008 to the Northern Hospital in Broadmeadows recorded that you had a prior history of ice use and had not been taking your medication, as you did not think it would help.[25] Further, an assessment conducted at Orygen Youth Health on 18 March 2008, gives a very different history concerning the alleged kidnapping from that which you gave Mr Armstrong. This is as follows:
“[He is] are worried about going out of local area, as [he] may see previous drug using friends or previous dealers that he believes may still want retribution for previous drug-related behaviours. [He is] concerned they may present to [his] house and cause problems. [he reports] ex drug dealing friends presented to [your] house in Jan ’08 and asked for $20,000. [He is] not clear in interview about the reasons why this occurred. [He] fell out with [his] drug using friends in Dec 07.”[26]
[23]Exhibit 12
[24]Exhibit 15
[25]Exhibit 16
[26]Exhibit 17
52In his report, Mr Armstrong assessed you as having a long history of psychiatric disturbance. He said you were vulnerable to this as an infant before you arrived in Australia “either primarily or secondarily as a consequence of exposure to war-related trauma”, and this was compounded by your exposure to family violence, such that you had experienced chronic child abuse for at least the first 15 years of your life. He considered that based on your history which was also corroborated by your family, you were most likely exhibiting features of personality disturbance and Post-Traumatic Stress Disorder as a child. You also presented with hallmark features of polysubstance abuse which had become a very serious problem from age 19 to 20 years onwards.
53In summary, Mr Armstrong expressed the view that you presented with untreated Post-Traumatic Stress Disorder, untreated persistent depressive disorder, and, at the time of your arrest, had a stimulant-use disorder and anxiolytic-use disorder. In addition, your mild Acquired Brain Injury aggravating each of these conditions. He noted that your offending had escalated, but claimed that you had become increasingly shameful of it because of your children and the burden on your wife and family. He considered you to be relatively well adjusted to the custody environment, but expressed concern that you might be at risk of institutionalisation.
54He made a number of recommendations concerning treatment by a multi-disciplinary team for your drug addiction and psychological intervention, noting the need to adapt treatment for your Post-Traumatic Stress Disorder, persistent depressive disorder, and polysubstance abuse, in the light of your mild Acquired Brain Injury. He considered that these conditions will remain long-term vulnerabilities and, that although you are street-smart, there is a high risk that you would, nonetheless, become a victim of manipulation because of your extremely low IQ. I here interpolate that, notwithstanding that you have been in custody many times in the past, no evidence of you having been thus manipulated was put before the Court.
55At the plea hearing on 28 September 2023, Mr Armstrong gave oral evidence before me. He had not made assessments of your intelligence, but relied upon and interpreted earlier assessments. He stated that your verbal comprehension was borderline range in the 3rd percentile, meaning that 97 per cent of the population performed better than you; that your perceptual reasoning is in the bottom 10 per cent of the population; that your working memory is in the low average range in the 13th percentile; and that your information-processing speed is in the bottom 0.3 per cent of the population. Mr Armstrong noted that, now that a formal diagnosis of a mild Acquired Brain Injury had been made, you may well be eligible for a National Disability Insurance Scheme package or, if not, you may be eligible on the basis of your psychiatric and drug history, given your diagnosis of Post-Traumatic Stress Disorder.
56Mr Armstrong understood that your Post-Traumatic Stress Disorder was due to a combination of factors. The first was your recollection of what happened in Iraq. When I pointed out that your family had fled Iraq, and by the time you were three years and one month old you had arrived in Athens and would not be expected to have any embedded memories at that stage, Mr Armstrong stated that there was research which amounted to a hypothesis that there can be a catastrophic effect of a child being exposed to trauma, even if they cannot recall it. This seemed to me to be shifting ground, given that your history to Mr Armstrong and the other recent report authors, Ms Ferrari and Dr Fratti, was that you had an actual memory of these things.
57The second factor which Mr Armstrong believed to be causative of your Post-Traumatic Stress Disorder was the alleged kidnapping which had occasioned your family having to pay a ransom of $20,000. He said he had spoken with your wife, who confirmed that you had gone missing for around a week and when you returned you were “black and blue”. Mr Armstrong said that he understood that this occurred when you were approximately 19 or 20 years of age. When I asked Mr Armstrong whether he had taken the same history from you as recorded by Ms Ferrari, namely that you had been force-fed methamphetamines for several days and required immediate surgery, Mr Armstrong said he did not have that history, and agreed that it might be useful to see the medical or hospital records about the surgery, as they might or might not be significantly corroborative of your version of events.
58In the circumstances, I agreed for the matter to be adjourned for a period of some weeks to enable medical or hospital material to be subpoenaed, as Mr Dunn of Senior Counsel, who was then appearing on your behalf, submitted that your exposure to family violence, your Crohn’s disease, and Post-Traumatic Stress Disorder, were the originators of your entrenched drug habit.
59The matter came on for completion of the plea hearing on 17 November 2023. At that hearing, tendered as Exhibit “20”, was an affidavit sworn by your mother. She attested to a number of traumatic events which had occurred to the family when you were living in Iraq: That you left Iraq when you were three, and you remained on a boat in Turkey for one month before, ultimately, being accepted as refugees by the Greek authorities. Following that, you remained in Greece for three years, but she and your father did not feel stable or secure, so sought a better life by coming to Australia, where you arrived on 31 December 1996.
60In her affidavit, she confirmed that your father was a strict disciplinarian and on one occasion, had burnt your hand. She maintained that his ill-treatment of you continued until he was diagnosed with Alzheimer’s Disease in 2014. I here interpolate that your counsel, and other material before the court, had indicated that by 2013 you had moved out of the family home to live with Lauren, with whom you had been in a relationship since the age of 17 years.
61Your mother’s affidavit stated that you struggled with schooling, had difficulty learning English, and had repeated Prep, were bullied by other children due to being chubby, and that your schooling was affected by your health. You had difficulties with stomach pain and had been ultimately diagnosed with Crohn’s Disease when you were 15 years of age and, soon after, doctors diagnosed you as also suffering from depression. She noted that, from your late teens, you began to associate with “bad friends” and get into trouble.
62She described that in January 2008, you had left home to meet someone and, some three days later at 3.00am, she received a phone call from an unknown person and she could hear you screaming in the background. She stated that she was told to meet up with this person. Later that day, she was leaving home with her husband to meet the person at an appointed restaurant, when a car containing three males pulled up as they exited the driveway. One of the males approached their vehicle and demanded $20,000 for your release. She stated that they borrowed money from her brother and her husband’s brother. They handed the money over the next day and, about 10.00pm that night you were dumped at home and were bleeding from your head and face. She stated that they never reported the incident to police as they were afraid for the family’s safety.
63I note that your mother’s affidavit made no mention of you needing to be immediately hospitalised because of the alleged assault. However, she did say that you have struggled with your Crohn’s Disease and your mental health and drug use over many years. She alleged that you had been experiencing a lot of pain from your Crohn’s Disease prior to your arrest in December 2021.
64Your mother’s brother, Khaled Younan, in a letter to the court dated 30 October 2023, confirmed that your mother had borrowed $10,000 from him because you were in a dangerous situation.[27]
[27]Exhibit “21”
65The medical material which had been subpoenaed between the first and second plea hearings did not substantiate that you needed to be hospitalised because of the alleged assault by your kidnappers. Nor did it make mention of any injuries being noted to be present on your body. It shows that you had been hospitalised from 28 February to 12 March 2008 at the Northern Hospital at Broadmeadows for “complex Crohn’s Disease: enterocutaneous (umbilicus) and enterovesical fistulae”. It was necessary for you to undergo a laparotomy, ileocolic resection, excision of fistulae and cystostomy on 4 March 2008.[28] Your total care progress notes from 28 February to 11 March 2008 shows that you were in a very miserable state of health with your Crohn’s Disease, having been admitted with a two-day history of discharge via the umbilicus and tenderness and pain over the last six months. Your mood was noted to be very low and you were largely uncommunicative for quite a lot of your early part of your admission. You were not cooperative with the staff in relation to treatment, and it was noted that you had a prior history of not having been compliant in taking the medication prescribed for your Crohn’s Disease over the last three years, as you claimed that it did not help, and you apparently had some concerns about side effects by way of weight gain.
[28]Exhibit “16”
66There were other records which noted your history of non-compliance with treatment and, clearly, your Crohn’s Disease was out of control at the time of this admission. The nursing notes document a distressing condition of pain, both before and after the surgery, and a concern about your mental health. The records indicate that you were considered to be depressed and it was suggested that a 25 mg does of the antidepressant, Sertraline, to be titrated to 50 mg, together with a referral to Orygen Youth Health upon your release.
67At the time of your admission for that surgery you were 17 years old. Your progress notes on 28 February record that your mother had described your mood and affect as consistently low, and that you had been violent at home, always uptight and anxious and angry, and she had suspected drug use several months ago. She had endeavoured to keep you home over the last two or three months, and noted that, since you had stopped seeing your friends you were less violent and antisocial, as you had previously been breaking household items regularly beforehand and, also, stolen your mother’s car and been charged with speeding offences and were facing court in March.
68Later in the nursing notes, on 4 March 2008, it was noted that you had a two-year history of feelings of anger and aggression resulting in damage to property at home and standover tactics with parents, and that you also experienced feelings of sadness, guilt and anxiety and had been using “Ice” for two years but had ceased some two to three months previously. The history also noted that you had been “dealing”, but there were no charges for this, only possession – albeit that you did have driving charges and an armed robbery involving a knife coming up for hearing at court. There was also a note that you no longer see drug acquaintances following a fight in December, and that you were very frightened of seeing them in the street due to this.
69On the second day of the plea hearing (17 November 2023), Mr Morrisey of Senior Counsel appeared on your behalf. The plea submissions which had earlier been made on your behalf were modified in the light of a number of factors, including material that had been put before the court relating to your Crohn’s Disease. Mr Morrisey sensibly conceded that it was inappropriate to try to fit your mental health, cultural, physical and drug problems into a particular category to attract the principles in Bugmy or Verdins’ case. He acknowledged that he was unable to satisfy the court, on the balance of probabilities, that your Post-Traumatic Stress Disorder, or any other condition, had contributed to your offending to enliven principles 1-4 of Verdins. However, he maintained that principles 5 and 6 had application in that your Acquired Brain Injury, which appears to be attributable to your drug use and has resulted in a mild intellectual impairment, together with your symptoms of Post-Traumatic Stress Disorder and depression, do make serving a term of imprisonment more onerous than for persons without those concerns, and that there is a risk that your mental health may worsen in custody.
70This has been a somewhat messy and disjointed plea, perhaps largely attributable to you being a poor historian. The multiple inconsistencies in your histories cause some difficulty in accepting any precise aetiology of your mental health conditions. One might be inclined to the view that you have exaggerated past traumas because you know that you are facing by far the most serious charges and longest sentence of imprisonment that you have yet experienced, although a more compassionate view is open, namely, is that your long-term drug use has addled your mind so that you become confused and incapable of giving a clear and chronological account of events. Whatever the reason, in sentencing you I take into account the following matters:
(a) (i) You pleaded guilty to the charges and are entitled to a discount for the utilitarian benefit of those pleas. They were apparently indicated on the morning of the day that a contested committal was due to commence on 25 July 2022, only seven months after you were arrested and charged on 1 December 2021. You have saved the time and resources involved in conducting a trial and facilitated the course of justice. There should also be some allowance of an added utilitarian benefit because, in July last year this Court was still facing congested trial lists due to the backlog of trials which had not been able to be accommodated over the previous couple of years due to the restrictions imposed during the COVID-19 pandemic. By your pleas of guilty you, at least, have not added a trial to the list.[29]
(ii) In a letter to the court you say that you are sorry for all that you have done “to myself, my family and others”. This is primarily an expression of regret about how your offending has impacted on yourself and those you love and could not be regarded as an expression of true remorse entitling you to a much higher discount on the sentence which otherwise would have been imposed. However at least, it shows that in the past 22 months in custody, whilst remaining free of illicit drug use, you have reflected how selfish you have been and how this has impacted, on your wife, children and other family members.[30]
(b) I am satisfied, on the balance of probabilities, that you do suffer long-term depressive symptoms and some symptoms of Post-Traumatic Stress Disorder. Although it is difficult to tease out the precise cause of these symptoms, your mother’s affidavit provides some evidence of a traumatic transition of the family from Iraq to Australia when you were small and challenges you faced through harsh punishment from your father and some bullying at school. The circumstances surrounding the alleged kidnapping are somewhat murky and it is plain, now, that you were not hospitalised due to serious injuries which you claim to have received by being assaulted in that kidnapping, but, rather, due to your long-term Crohn’s disease needing management. Nevertheless, the Court should take into account, as part of your personal circumstances, that you do suffer mental ill health and that this does make serving a term of imprisonment more onerous and, with some reservation, I find, on the balance of probabilities, there is a risk your mental health may worsen while in custody. I say this with some reservation, because the fact that you have remained drug free has, in fact, given you a clearer mind than you have probably had for many years. With that clearer mind, has come some increased resolve to do something about your drug problem, which, in spite of previous resolutions, has proven very difficult for you. Hence, as a matter of fairness, I do find some reduction in your moral culpability because of your long-term mental health difficulties, particularly as they are associated with your mild intellectual impairment;
(c) (i) Perhaps the most mitigatory factor in your favour is now apparent to the Court in a way that it was not apparent during the initial plea hearing on 28 September 2023. Exhibits “12” through to “19” comprise various hospital and other health records which clearly document that, from November 2005, you have been troubled by inflammatory bowel disease with unpleasant, painful and embarrassing symptoms, which have become increasingly debilitating over the years and necessitated various periods of hospitalisation and surgery. Unfortunately, it would appear that the extent to which your Crohn’s disease got out of control was in some measure attributable to the fact that you decided that using illicit drugs was the best therapy for you, rather than engaging with what was recommended by multiple doctors and other health professionals over the years. Be that as it may, I accept that this is a very serious condition, which is lifelong and for which there is no cure and I have very little doubt that this would have been a very challenging and embarrassing condition, particularly to a teenager trying to gain acceptance within a peer group at school. It is perhaps understandable, particularly given the young age at which it afflicted you and the fact that you had no great insight into your own limitations, both physical and cognitive, that you gravitated towards illicit drug use as a means to cope and try and fit in. Unfortunately, that has meant that you have a cognitive impairment, albeit mild, and I do take that into account, regardless of its causation. I consider the Crohn’s disease to be a significant personal factor for you in the past, and it is ongoing.
(ii) The extracts from Port Phillip Prison health records over March and April 2023, demonstrate that you have had ongoing difficulties with constipation and diarrhoea in the context of six-month history of intermittent obstruction, with nausea, vomiting and your bowels not opening. Your symptoms worsened and you were booked in for a colonoscopy, and commenced on the medication, Mesalazine, 1.2 grams on 4 April 2023. It seems that you did undergo an admission for a colonoscopy.[31] Unfortunately, subsequently, it appears you have declined the show colonoscopy shows that further appointments with the inflammatory bowel disease clinic, despite your Crohn’s disease appearing to be active as a result of that colonoscopy. This is apparent from a letter from St Vincent’s Hospital dated 7 August 2023, electronically signed by Dr Timothy Phan, registrar. At that stage, you were discharged from the clinic, and it was noted that, if you did choose to attend again, you would require faecal calprotectin and a repeat colonoscopy, with a view to commencing 50 milligrams of Azathioprine and a repeat MR enterography.[32] It is troubling, and not entirely clear why you refused to cooperate with treatment for this debilitating disease. Nevertheless, I have no doubt it does make your time in custody even more onerous, coming, as it does, on top of your mental health and cognitive impairment issues.
(i) At the moment I am very guarded concerning your prospects of rehabilitation. At the age of 33 years you have a very limited work history. After leaving school, you worked for a few years with your father in his stonemason’s business, and periodically have shown an aptitude for purchasing cars at auction, doing them up, and selling them at a profit. Apparently, before the COVID‑19 pandemic you had set up some form of tow-truck business, which did not come to fruition because of the pandemic restrictions. You have very little work history, and it is plain that you have dealt in drugs, not only to support your own drug habit but to support your family, comprising your long-suffering wife Lauren and your three children, for whom you have been a somewhat absent father. When you have not been out and about at night using drugs or selling drugs, you have been in custody. However, it must be acknowledged that you do, at least, have some work skills, albeit that you have put them to limited positive use in the past. The fact that you organised the drug-trafficking business with two assistants, the use of multiple locations and multiple vehicles, as well as two phones, demonstrates that you do have some organisational skills despite your mild intellectual impairment. I accept your counsel’s submission that this is one factor in favour of your rehabilitation, as is the fact that you have a considerable amount of family support.
(ii) At each of the two plea hearings there were a number of relatives attended to support you: in particular, your long-suffering wife Lauren, mother, sisters and an aunt. Also, your cousin and uncle, both provided character references,[33] as did your wife. It is plain from those references that, in spite of your past misdeeds, you still have people who love you and care about you. In particular, your wife, Lauren, states that she has noticed a big change in your attitude since you have been incarcerated. In this respect it should be noted, that between March 2022 and July 2023, whilst in custody, you were asked at random to provide urine samples for analysis, and these have been analysed as being negative for illicit drugs.[34]
Your mother described you as having a loving and kind nature when you are not affected by drugs. Your wife also described you as loving and kind-hearted and generous. She comments that, although you have not been around, your children, who are aged 9, 8 and 6, have an unbreakable bond with you, and you love them. You must have some good qualities for both your wife and children to continue to support you, given the very bad choices and poor behaviour that you have demonstrated over many years. The fact that you still have this support is another factor is in favour of your rehabilitation, as so many drug addicts and traffickers who come before this court have burnt their bridges with all their family and are totally isolated.
[29]Worboyes v The Queen [2021] VSCA 169
[30]Exhibit “10”
[31]Exhibit “18”
[32]Exhibit “19”
[33]Exhibit “21”
[34]Exhibit “8”
71Mr Polos, you should be in no doubt as to the seriousness of this offending on Charges 1 and 2, each of which carry a maximum penalty of 25 years’ imprisonment. Given that you have struggled with drug addiction for a long time, you should be aware of the hideous cycle of misery and destruction that is associated with addiction. It places a huge toll on our community by destroying the capacity of those who are addicted to lead decent, functioning lives, work productively and have normal relationships with those around them. Inevitably, as you well know, drug addicts resort to crime to support their habit, and trafficking can then become a way of life or, indeed, in your case, a means supporting yourself and your family, even leaving aside the cost of your own drug habit.
72Crimes committed by drug addicts have a huge impact on other members of the community, who have their property stolen or their homes invaded, or are subjected to frightening and often random violent attacks. Huge resources are needed to deal with the problem of drug addiction, not only the resources of the police in order to detect crime and bring criminals to justice, but also the resources of courts and, of course, prisons. There is also a great burden on our healthcare system caused by drug addicts who overdose or need rehabilitative treatment or, indeed, because of the victims of the crimes of drug addicts who require medical or hospital treatment. It has aptly been described many times as a “scourge” on our community. You have prior convictions for trafficking and contributing to this misery. Your current offending is an escalation by involving commercial quantities and, hence, adding further to this scourge on our community.
73Whilst I take into account that there is no evidence of enrichment, as I have said, you have not worked for a long time and this seems to have been the way you supported yourself. You have made limited attempts in the past to engage in rehabilitation, and I have already commented on the fact that you had been given the chance of a Community Correction Order in November 2021, right in the middle of the three-month period of your offending.
74Obviously, the offence of drug trafficking is a quantity based offence. Accordingly, the quantity of drugs trafficked, which is not determinative of the sentence is a very relevant factor. Charge 1 involved almost 25 times the commercial quantity of 1,4 Butanediol. Charge 2 involved just over twice the commercial quantity of methylamphetamine (mixed). The quantities involved obviously make the offending serious albeit that they are not the highest with which this Court deals. In spite of your mental impairment and drug dependence, as I have said, you showed a level of organisational skill in conducting this drug trafficking business. You were the organiser of the business, and the fact that it extended over a period of some three months is also a serious matter. Although you clearly were a user of illicit drugs, your trafficking involved more than simply ensuring that you could satisfy your own habit. Overall, I consider that objective gravity of offending is mid-range. Although, your moral culpability is not as high as a trafficker who is not a drug user and offends solely to make a profit, but it is above that of a subsistence level user/trafficker.
75In sentencing for this offence, the primary sentencing considerations must be denunciation of your conduct and general deterrence. General deterrence means that through sentencing you, the court must send a message to other would-be drug traffickers that if they engage in this antisocial and detrimental trade, then they will be appropriately punished.
76In the light of the fact that you have a prior criminal history involving four charges of trafficking (in 2012, 2016, 2019 and 2021), for each of which you received a term of imprisonment, the court must impose a sentence which factors in that you, personally, need to be specifically deterred from engaging in this offending conduct.
77Given the length of your criminal history and history of drug abuse and limited engagement in treatment for both this and your mental health and Crohn’s Disease, all of which seem to be tied up together, I have expressed my reservations about your prospects of rehabilitation. However, you are only 33 years of age and it would be very wrong of this Court to condemn you as having no prospects of rehabilitation. Your time in custody since you were remanded, some two years ago, is probably the longest period of abstinence from illicit drug use that you have had for a long, long time. If you maintain your resolve to remain drug-free and develop motivation to engage with treatment for your Crohn’s Disease and mental health issues, then there is a prospect that you can be rehabilitated. If you do not, then the pattern of offending and terms of imprisonment, which are evident in your history, will simply be repeated and your life will be a miserable and wasted one.
78If that happens, your wife will never know what it is to have a devoted husband who is at home caring for her and the children, and the children will never properly know their father. This means that your offending will have a long-term ripple effect on the lives of those precious children you have brought into the world and your wife. You should never lose sight of that fact, Mr Polos. They are not simply the responsibility of your wife, who has carried a heavy burden of parenthood over many years. For her sake, and their sake, and your own sake, you need to have a really good, hard look at your life and decide whether you are going to change your ways.
79As you are not a young offender, and you have been convicted previously for a drug offence for which you have been sentenced to a term of imprisonment, you fall to be sentenced on Charges 1 and 2 as a serious drug offender pursuant to s6B of the Sentencing Act. This means that in determining the length of your sentence, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed, pursuant to s6D(a). It has not been submitted by the prosecution that in order to achieve that purpose I need to impose a disproportionately long sentence pursuant to s6D(b). Nor do I consider that such a course would be appropriate.
80Pursuant to s6E, every term of imprisonment imposed on a serious offender for a relevant offence must be served cumulatively unless otherwise directed by the Court. It has been conceded by the prosecution, appropriately in my view, that total cumulation is not appropriate. Whilst it is necessary to acknowledge in the sentence that the drugs involved in the two commercial trafficking charges are different drugs, it must be recognised that the activity which forms the basis of each charge is overall part of the same business enterprise operated by you. Accordingly, the principle of totality requires that some concurrency be applied.
81Pursuant to s6F, when sentencing you on Charges 1 and 2, I cause to be entered in the records of the court that you are sentenced as a serious offender.
82Pursuant to s5(2G) of the Sentencing Act, the offence of trafficking in a commercial quantity of a drug of dependence is a Category 2 offence. Thus, pursuant to s5(2H) the Court must impose a term of imprisonment (other than a sentence of imprisonment in addition to making a community correction order) unless one of the exceptions in that provision applies. It has not been argued that any of the exceptions apply in your case. Accordingly, your counsel has conceded that the only appropriate sentence is a term of imprisonment comprising a head sentence and a non-parole period.
83Charge 1, trafficking in a commercial quantity of a drug of dependence, namely, 1,4 butanediol convicted and sentenced to a period of 6 ½ years’ imprisonment.
84Charge 2, trafficking in a drug of dependence, namely, methylamphetamine, you are convicted and sentenced to a period of 4 years’ imprisonment.
85Charge 3, possession of a drug of dependence, namely, 3,4 Methylenedioxy-N-Methylamphetamine (MDMA), you are convicted and sentenced to a period of 9 months imprisonment .
86Summary Charge 5, dealing with property suspected of being the proceeds of crime, you are convicted and sentenced for a period o 6 months’ imprisonment.
87Summary Charge 6, failing to comply with a direction given to you by a police officer, you are convicted and sentenced for a period of 3 months’ imprisonment.
88The base sentence is 6 ½ years imprisonment imposed on Charge 1.
89I direct that 20 months of the sentence imposed on Charge 2, 3 months of the sentence imposed on Charge 3, 2 months of the sentence imposed on Summary Charge 5 and 1 month of the sentence imposed on Summary Charge 6 be served cumulatively upon the base sentence and upon each other.
90The total effective sentence is thus 8 years and 8 months imprisonment.
91I direct that you serve a period of 5 years and 5 months imprisonment before becoming eligible for parole.
92I declare a period of 751 days pre-sentence detention to be time reckoned as served upon the sentence on Charge 1 and 2 imposed this day.
93Pursuant to s6F Sentencing Act, I cause to be entered into the records of the court that you have been sentenced on Charge 1 and 2 as serious offender.
94Pursuant to s6AAA Sentencing Act, I state that, had you not pleaded guilty, the total effective sentence imposed would have been 11 years imprisonment with a non-parole period of 8 years.
95Upon your conviction on Charge 1 and Charge 2, trafficking in a drug of dependence and possession of a drug of dependence, pursuant to s34(1) of the Confiscation Act, I order that $2450 in Australian currency, the “Burbury” wallet containing $1365 in Australian Currency and, also, 50 dollars of Australian currency referred to in the schedule be forfeited to the Minister.
96On those same charges, pursuant to s78(1) of the Confiscation Act, I order the disposal of the mobile telephones and drugs of dependence which are referred to in the schedule.
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