Director of Public Prosecutions v Polos

[2021] VCC 1506

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00029
Indictment No. L10932778

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAYAN POLOS

---

JUDGE:	HIS HONOUR JUDGE HANNEBERY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2021, 9 September 2021
DATE OF SENTENCE:	7 October 2021
CASE MAY BE CITED AS:	DPP v Polos
MEDIUM NEUTRAL CITATION:	[2021] VCC 1506

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              trafficking in a drug of dependence in not less than a commercial quantity - trafficking in a drug of dependence - resisting an emergency worker on duty - handling stolen goods – breach of parole – plea of guilty – COVID-19 – co-operation with authorities

Legislation Cited:      Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958; Sentencing Act 1991

Cases Cited:Verdins v The Queen (2007) 16 VR 269

Sentence:                  Three years and nine months imprisonment and I direct that you serve two years and nine months before becoming eligible for parole.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Roper	Solicitor for the Director of Public Prosecutions
For the Accused	Mr P. Dunn QC (Plea) Mr D. Georgiou (Sentence)	Melasecca Kelly & Zayler

HIS HONOUR:

Introduction:

1Rayan Polos, you have pleaded guilty to an indictment containing six charges being:

(a)Charge 1, trafficking in a drug of dependence in not less than a commercial quantity contrary to s71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981;

(b)Charges 2 and 4, which are both trafficking in a drug of dependence, namely cocaine and MDMA, contrary to s71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981;

(c)Charge 3, possessing a drug of dependence, contrary to s73(1) of the Drugs, Poisons and Controlled Substances Act 1981;

(d)Charge 5, resisting an emergency worker on duty, contrary to s31(1)(b) of the Crimes Act 1958; and

(e)Charge 6, handling stolen goods, contrary to s88 of the Crimes Act 1958.

2You also pleaded guilty to six related summary offences being:

(a)Summary Charge 8: dealing with property suspected of being proceeds of crime;

(b)Summary Charge 14: breaching a condition of parole;

(c)Summary Charge 15: possess cartridge ammunition without licence;

(d)Summary Charge 16: possess a Schedule 4 poison;

(e)Summary Charge 25: dangerous driving; and

(f)Summary Charge 26: unlicensed driving.

3The maximum penalty for these offences is as follows:

(a)Trafficking a drug of dependence in not less than a commercial quantity: 25 years imprisonment;

(b)Trafficking in a drug of dependence: 15 years imprisonment;

(c)Possess a drug of dependence: five years imprisonment or one year if, as is the case here, it is established on the balance of probabilities, that the possession was not for the purpose of trafficking;

(d)Resist an emergency worker on duty: five years imprisonment;

(e)Handle stolen goods: 15 years imprisonment;

(f)Deal with property suspected of being proceeds of crime: two years imprisonment;

(g)Breaching a condition of parole: three months imprisonment or 30 penalty units or both;

(h)Possessing cartridge ammunition: 40 penalty units;

(i)Possess a Schedule 4 poison: 10 penalty units;

(j)Dangerous driving: 120 penalty units or 12 months imprisonment or both;

(k)Unlicensed driving: 60 penalty units or six months imprisonment.

4Trafficking in not less than commercial quantity of a drug of dependence is a Category 2 offence, pursuant to s3(1) of the Sentencing Act 1991, whereby the court must impose a sentence of imprisonment other than imprisonment combined with a community corrections order, unless an exception applies.  Your counsel did not seek to rely on an exception.

Summary of Offending

5The summary of prosecution opening on plea was tendered and read aloud in court.[1]  In short:

[1]Prosecution Exhibit 1.

6You were 27 years old at the time of offending and were living at an address in Roxburgh Park.  You were granted parole on 2 October 2018 and this was to be effective from 7 November 2018 to 2 November 2021.  It was a condition of your parole that you were not to commit an indictable offence whilst on parole.  The charges on this indictment breach that condition and give rise to Summary Charge 14.

7Your license was cancelled on 23 December 2019, due to failing to complete a Drug Behaviour Change Program.  On 10 April 2020, police observed you driving a white coloured Porsche Macan south on the Hume Highway at approximately 130 km per hour, in a signed 80 km per hour zone.  You were observed overtaking a vehicle on the wrong side of the road and were forced back onto the correct side of the road, after narrowly avoiding a head on crash.  This is the conduct the subject of Summary Charge 25, dangerous driving and Summary Charge 26, unlicensed driving.

8Police were unable to catch up to you, but patrolled the surrounding streets looking for your vehicle.  Your vehicle was located in the carpark of Foodworks in Roxburgh Park.  Police parked behind your vehicle and waited for additional police to arrive before approaching your vehicle.  As they did so, you appeared from behind some bushes in front of your vehicle.  You pushed past the police officer to get into the driver’s seat of your car.  You started the car despite police members directing you to exit the vehicle.  You did not comply with these requests and continued to resist police.  Police attempted to remove you from the vehicle by pulling your legs and upper body.  More police members arrived and continued to attempt to remove you from the vehicle.

9You continued to resist police and exited the vehicle trying to flee towards the rear of the vehicle.  Police used capsicum spray on you to effect an arrest.  You continued to resist arrest by pushing off police and rolling along the side of the vehicle, before eventually managing to get back into the vehicle again.  You started the vehicle and attempted to put it in to gear.  You were eventually pulled out of the vehicle and onto the ground.  After several minutes, you were handcuffed and arrested.  This is the conduct comprising Charge 5, resisting an emergency worker on duty.

10You were transported to Northern Hospital in a highly drug affected state and treated for lacerations on your head sustained during the arrest.[2]

[2]Defence Exhibit 10.

11Following the arrest, police conducted a search of your vehicle and located the following items:

(a)$1,910 in Australian Currency.  This is the subject of Summary Charge 8: Deal with property suspected proceeds of crime.

(b)Four working Digital scales

(c)Two blister packs containing 30 'Imovane 7.5g' tablets.  This is the subject of Summary Charge 16: Possess Schedule 4 poison (zopiclone).

(d)Six white rectangular shape tablets of Xanax.  This is the subject of Charge 3: Possess Drug of dependence (Alprazolam).

(e)Louis Vuitton wallet stamped with `RP' and containing multiple forms of ID belonging to Peter Kassiotes.  This is the subject of Charge 6: Handling stolen goods.

(f)One round of ammunition.  This is the subject of Summary Charge 15: Possess cartridge ammunition without licence.

(g)A Black glasses case containing a 'Rolex' leather band watch.  This is the subject of Summary Charge 8: Deal with property suspected of being the proceeds of crime.

(h)A 'Rolex' brand silver and gold watch.  This is the subject of Summary Charge 8: Deal with property suspected proceeds of crime.

12Various white crystalline substances were also found in the car.  They were transported to the Victorian Police Forensic Services Centre for analysis.  As a result of the analysis, the following quantities were confirmed:

(a)Methylamphetamine with a net weight of 401.4 grams of 82 - 87 % purity. This is the subject of Charge 1: Trafficking in a drug of dependence in not less than a commercial quantity;

(b)MDMA with a net weight of 187.9 grams of 26 - 36 % purity.  This is the subject of Charge 4: Trafficking in a drug of dependence; and

(c)Cocaine with a net weight of 89.3 grams of 50-75 % purity.  This is the subject of Charge 2: Trafficking in a drug of dependence.

13A search warrant was executed on your house in Roxburgh Park.  The search found an American Express card in the name of L. Berbichashvill in your wardrobe. This is the subject of Charge 6, handling stolen goods.

14On 18 April 2020, you were charged and remanded without interview. Investigations revealed that you did not hold a current firearms licence.

Nature and Gravity of Offending

15The offence of trafficking in not less than a commercial quantity of drugs is a very serious offence in any circumstance.  This is evident from the maximum penalty of 25 years imprisonment.

16In this case, the offence was committed whilst you were on parole.  The charge is put on the basis that you were in possession of the methylamphetamine for the purposes of sale.  The weight of the substance and the circumstances of its discovery with items such as scales and money, the subject of other charges, might be said to be consistent with the intended sale of the drugs.

17It was put on your behalf that you were assisting others in the collection of drugs. There is, however, no evidence on the brief as to the circumstances in which you came into possession of the drugs, nor of any specific intention you held, as to when or for how much the drugs were to be sold.

18It is not for me to speculate on matters beyond the elements of the offence, either aggravating or mitigating, that are not established by the evidence to the requisite standard.

19In this case, all that can be safely concluded is that you had possession of those drugs at the time of the police interception and that they were of the weight and purity alleged in the opening.  I can draw no mitigatory nor adverse inferences about any financial gain you had received or might receive, beyond a very basic conclusion that your motivation for your actions was financial gain of some kind. No further conclusions about the matter can safely be drawn.

20You were heavily drug effected at the time of the interception.  This is consistent with the submissions put on your behalf on the plea, that you had relapsed into drug use and that this provides some context for the offending, though this does not mitigate your offending in and of itself.

21The weight and purity of the substance possessed is the key determinant of the gravity of the offence.  In this case, the drugs the subject of Charge 1, being the 401.4 grams, at a purity around 85%, is almost seven times the designated 50 gram commercial quantity for pure methylamphetamine.

22Similarly, both Charge 4, trafficking in MDMA and Charge 2, trafficking in cocaine, are put on a possession for sale basis.  The 187.9 grams of substance containing MDMA the subject of Charge 4, was more than 60 times the applicable trafficable quantity and about 37% of the designated commercial quantity for MDMA.

23The 89.3 grams of cocaine, the subject of Charge 2, was significantly in excess of the 3 gram trafficable quantity and about 16% of the designated commercial quantity.

24I regard Charge 1, as a middle range example of an inherently serious offence, and both Charges 2 and 4, to be serious examples of the offence of trafficking simpliciter.

25You have chosen to participate in the trafficking of substantial amounts of multiple substances, whilst still serving a previous sentence of this court, whilst being released on parole.  The moral culpability attaching to this offending is necessarily high.

26The conduct immediately prior and subsequent to your interception, including your driving and resist of arrest was reflective of your gross intoxication at the time, from a massive drug overdose which caused you to be placed into an induced coma. That said, police officers in the course of legitimate duties, should not be subject to this kind of resistance from drug affected people.

27The manner of your driving, which involved excessive speed and a disregard for traffic signals, was fortunate not to cause a collision.  It was manifestly dangerous and this is a significant example of the offence.

Personal Circumstances

28You were 27 at the time of the offending and are now 29.  You were born in Northern Iraq into a Christian family who fled persecution and went to Turkey and then to Greece, before arriving in Melbourne in 1996 as refugees.[3]  You are the third of four siblings in your family.

[3]Defence Exhibit 1.

29You attended Roxborough College Christian School to Year 10, however, had difficulties with your learning.  At age 16, you left school to attend TAFE and work in a supermarket.  You have minimal literacy skills, and were unsuccessful in completing your VCE at TAFE.

30You report sexual abuse in your childhood.  You have a serious history of polysubstance abuse commencing at age 18 and continuing whilst in custody and in the community. 

31You have admitted a concerning criminal history dating back to 2011.  You have spent the majority of your adult life in custody.  In 2013, you were sentenced to a period of imprisonment of 10 years, with a non-parole period of seven years for three very serious armed robberies committed when you were aged just 18.  You were 20 at the time that sentence was imposed.

32

In 2017, you were transferred to the Judy Lazarus Transition Centre and on

7 November 2018, you were granted parole.  On parole, you resided with your parents, caring for your father who had been diagnosed with early onset Alzheimer’s whilst you were serving sentence.  During this time, your father’s Alzheimer’s advanced and you relapsed into drug use.  Your father is now in full time care.[4] Prior to this offending in April, you instruct that your girlfriend suffered a miscarriage.

[4]Defence Exhibit 11.

33Whilst in custody, you have been employed as a billet.

34Eighteen character references[5] were also tendered on your plea, which outline the significant support you have from your family and from members of the community.

Mental Health and Application of Verdins[6]

[5]Defence Exhibit 7.

[6]Verdins v The Queen (2007) 16 VR 269

35

A psychiatric report from Dr Walton[7] describes you as mildly intellectually disabled and as a 'significantly psychiatrically disabled individual'.  Dr Walton provides a diagnosis of antisocial personality disorder, with accompanying depression.

Dr Walton opines that due to your intellectual disability, you would have 'compromised [your] ability to consistently exercise proper social judgement'.

[7]Defence Exhibit 5.

36A psychological report and follow up report of Mr Armstrong[8] provides a diagnosis of residual features of child onset post-traumatic stress disorder, stimulant and anxiolytic abuse disorder, and borderline personality disorder.

[8]Defence Exhibits 2 and 6.

37Mr Armstrong’s testing places you in the ‘extremely low range’ of intellectual functioning and you fulfil the criterion for mild intellectual disability.  Mr Armstrong comments on the effects of your early childhood trauma and developmental delays.  In his follow up report, Mr Armstrong opines that your substance abuse disorders can be described as in ‘early remission’ and considers depression to be a potentially emergent diagnosis.

38Dr Walton comments that you 'will endure imprisonment as more onerous than others'.  I accept that this enlivens limb 5 of Verdins and the prosecution conceded that this was the case.

39It was not contended on your behalf that any other limb of Verdins had applicability to the sentence, which is understandable given the nature of the charge.  I do, however, take the diagnoses made by Dr Walton and Mr Armstrong as part of your broader background, relevant to your prospects of rehabilitation.

Co-operation with Authorities

40You arranged for the surrender of a substantial number of weapons.[9]  None of the weapons have been connected by the investigating police to the commission of any crimes.

[9]Defence Exhibits 12 and 13.

41There is a benefit to the community in those weapons being surrendered.  The mere fact that functioning weapons are off the streets has obvious utility.  The surrender is consistent with remorse and is relevant to your prospects of rehabilitation.

42Accordingly, I consider it appropriate that there be some reduction of your sentence by reason of the surrender.

43The discount for that cooperation is necessarily limited, in that you did not provide any further information to enable further investigations to occur, as to who owned the recovered firearms, how they came to be in the location where they were found, how they were originally obtained, or any information that police could use to advance an investigation.

44There is also no suggestion that in surrendering those weapons, you have exposed yourself to any risk of retribution, either in the prison environment or beyond.

Plea of Guilty and Remorse

45You first indicated a plea of guilty to the charges on the indictment at the committal mention of the matter on 6 January 2021.  I consider this to be a plea of guilty made at the earliest reasonable opportunity.

46By your plea, you have spared the time and resources that would otherwise have been expended on contested proceedings.  The utilitarian value of your plea is particularly high, at a time when pandemic restrictions have placed extreme pressure on court listings.

47You have expressed remorse in the letter you have provided to the court, that was tendered on your behalf, in the course of the plea hearing.[10]  Your letter, written with some assistance because of your limited literacy, expresses some insight into the matters that lead to your return to offending after an initially promising first 18 months on parole.

[10]Defence Exhibit 8.

48The letter contrasts somewhat with the material from the experts.  Dr Walton states that:

'Mr Polos does not make a comprehensive expression of remorse.  I believe it would be hazardous simply to conclude that he has a psychopathic lack of empathy.  As an intellectually disabled individual, he is rather insightless and he seems to have difficulty articulating emotional states'.

49Similarly, Mr Armstrong says that:

'I suspect that Mr Polos appreciates the wrongfulness of his conduct at a superficial level.  However, psychological testing would suggest that he may not have understood or appreciated the gravity of his behaviour at the time of offending'.

50Overall, I consider that you have a level of remorse, albeit something short of complete contrition.

Prospects of Rehabilitation

51There are obvious reasons for caution about your prospects of rehabilitation.  You have committed serious drug offences while subject to the conditions of parole. Your previous history includes a lengthy sentence imposed by this court for very serious matters indeed, though it should be noted that they are of a different nature entirely to those currently before the court.

52You have spent the greater portion of your adult life in custody.  There is clearly a significant danger that you could become institutionalised.

53There are, however, some matters from which to draw optimism.  You have been abstinent from illicit substance use whilst in custody, a period of now 15 months.  Eleven negative urine screens dated between May 2020 and May 2021, were tendered on your plea.[11]  A letter of Gayle Talbot, Caraniche clinician, was also tendered which confirmed your attendance at 18 sessions of drug and alcohol counselling.  This is very much  to your credit.[12]

[11]Defence Exhibit 4.

[12]Defence Exhibit 9.

54You retain the strong support of family and friends.  You showed the capacity to remain offence free in the community during your initial 18 months on parole.  You are still a relatively young man.  It is by no means a hopeless situation, if you can remain abstinent from drugs.

55On balance, I consider your prospects of rehabilitation at this point to be guarded, but there is scope for them to improve, if you retain your current commitment to engaging with appropriate rehabilitative programs and services.

Impact of COVID-19

56The entire period that you have been in custody since your arrest on these matters has been subject to COVID-19 restrictions.  It would appear highly likely that these measures will persist for the foreseeable future.

57The pandemic has meant that there has been suspension of courses, rehabilitation programs and family visits, amongst a variety of other limitations that make imprisonment more burdensome than would otherwise be the case and I take this into account as a matter of mitigation.

Submissions on Sentence

58Mr Dunn QC, counsel on your behalf, appropriately conceded that a term of imprisonment was the only sentencing option.[13]  He submitted that a longer than normal parole period was sought to allow for further supervision upon your eventual release.

[13]Defence Exhibit 1.

59Mr Roper, on behalf of the Director, submitted a term of imprisonment involving a head sentence and non-parole period was warranted.[14]

[14]Prosecution Exhibit 3.

Sentencing principles

60It is highly probable that you will be required to serve in custody, that portion of your 2013 sentence for which you had previously been granted parole. Pursuant to s16(3)B of the Sentencing Act1991, time owed for that sentence would be served effectively cumulatively upon the sentence imposed for these offences.

61In circumstances where your parole was cancelled because of serious offending, none of the time spent by you whilst released on parole would count towards the sentence imposed in 2013, unless the Parole Board directed otherwise.  The time owing on that sentence is potentially three years, although I do note you have completed a portion of this owed time in the period of time since being remanded in custody, after your arrest.

62Some moderation of the current sentence is appropriate to have some pragmatic regard for the totality of time that you will be required to serve in custody.

63Given your previous criminal history, specific deterrence retains some significance in the sentencing process.  It is also necessary to deter others from similar offending.  I must impose a sentence that is just in all the circumstances, expresses the denunciation for your conduct, and considers the protection of the community.

64I must impose sentences on each individual charge that are appropriate for the circumstances applicable to them, then ensure that the structure of the sentence produces a total effective sentence that reflects totality of the criminality and the matters in mitigation.

65There is some need for cumulation of each of the trafficking Charges 2 and 4, upon the sentence imposed for trafficking in not less than a commercial quantity, namely Charge 1.  Beyond that, I intend that all other sentences of imprisonment that are imposed will be served concurrently.  I am conscious that the commission of these offences whilst on parole, was an aggravating feature of several of the charges, and that I am conscious not doubly punish you then for the offence of breaching parole conditions.

Sentence

66Mr Polos, I sentence you as follows:

67On Charge 1, trafficking in a drug of dependence in not less than commercial quantity, you are convicted and sentenced to three years and three months imprisonment.  This is the base sentence.

68On Charge 2, trafficking in a drug of dependence, you are convicted and sentenced to 15 months imprisonment.

69On Charge 3, possessing a drug of dependence, you are convicted and fined $250.

70On Charge 4, trafficking in a drug of dependence, you are convicted and sentenced to 18 months imprisonment.

71On Charge 5, resisting an emergency worker on duty, you are convicted and sentenced to six months imprisonment.

72On Charge 6, handling stolen goods, you are convicted and sentenced to two months imprisonment.

73On Summary Charge 8, dealing with property suspected proceeds of crime, you are convicted and sentenced to one month’s imprisonment.

74On Summary Charge 14, breaching a condition of parole, you are convicted and sentenced to one month’s imprisonment.

75On Summary Charge 15, possess cartridge ammunition without a licence, you are convicted and fined $250.

76On Summary Charge 16, possess a Schedule 4 poison (zopliclone), you are convicted and fined $150.

77On Summary Charge 25, dangerous driving, you are convicted and fined $1500.

78On Summary Charge 26, unlicensed driving, you are convicted and fined $500.

79I order that three months of the sentence imposed on Charge 2 and 3 months of the sentence imposed on Charge 4, be served cumulatively upon the sentence imposed on Charge 1 and upon each other.

80That makes for a total effective sentence of three years and nine months imprisonment.

81I direct that you serve two years and nine months before becoming eligible for parole.

82Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 11 days in custody as pre-sentence detention already served. 

83Pursuant to s6AAA Sentencing Act 1991, but for your plea of guilty, I would have imposed a sentence of five years and three months, with a non-parole period of four years.

84The prosecution has made application for disposal and forfeiture, this application was not opposed by counsel on your behalf and I make the order in the terms sought.

85I order that on Summary Charge 25, all licenses be cancelled and you are disqualified from driving for a period of 24 months.  All right, are there any further orders required? 

86MR ROPER:  I think that covers everything.

87HIS HONOUR:  Very well, thank you.  Mr Georgiou anything further?

88MR GEORGIOU:  No, Your Honour.

89HIS HONOUR:  Thank you.  Thank you both very much, I will now adjourn the court until 10.30.

- - -