Director of Public Prosecutions v Polychronopoulos
[2013] VCC 1099
•26 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02114
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ATHANASIOS POLYCHRONOPOULOS |
---
JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 July 2013 | |
DATE OF SENTENCE: | 26 July 2013 | |
CASE MAY BE CITED AS: | DPP v. Polychronopoulos | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1099 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Eales | Office of Public Prosecutions (Commonwealth) |
| For the Accused | Mr R. Lawrence | Pica Criminal Lawyers |
HER HONOUR:
1 Athanasios Polychronopoulos, on 23 April 2012 I sentenced you on three charges of import a border controlled drug contrary to s.307.3(1) of the Criminal Code (Commonwealth) by virtue of sub-s.11.2(1) of the Code. You pleaded guilty when arraigned, and as noted in my reasons for sentence, which have been revised and provided to you, the maximum applicable penalties for each of the charges that you then faced was ten years' imprisonment and/or a fine of 2000 penalty units.
2 The circumstances of the offending were set out in my original reasons for sentence and I do not want to repeat the detail at this time since the sentencing remarks speak for themselves. I propose to annex to these Reasons for Sentence my earlier Reasons for Sentence. So, Reasons for Sentence, 23 April 2012, will be Annexure A to these Reasons for Sentence.
3 On Charge 2, which concerned a package sent from China addressed to you containing 496.5 grams of methylone with a purity of 85 per cent constituting a pure net weight of 422 grams, I sentenced you to a term of imprisonment but considered it appropriate, on the basis of the material tendered and the submissions made at that hearing, to direct that that period of imprisonment not be immediately served. I directed that you be released forthwith upon giving security in the sum of $5000 to be of good behaviour for a period of three years.
4 At the time I gave you a very clear warning of the consequences of breaching the terms of the order. I said, "You must not, during that period of three years, commit any further breach of the law. If that occurs, you will be in breach of the terms of the recognisance and should expect to be brought back before the court and be ordered to serve the whole of the sentence I have just passed."
5 In paragraph 63 of my sentencing remarks I referred to the purpose of making the Recognisance Release Order. I said, "The purpose of my making the Recognisance Release Order is to give you the opportunity to not serve the sentence I have passed and to give you the chance to rehabilitate yourself so that you may become a useful and contributing member of the community.”
6 The evidence concerning your rehabilitation and prospects for further rehabilitation are dealt with in my original Reasons for Sentence.
7 On Charges 1 and 3, and these also related to packages sent from China containing illicit substances, in the case of Charge 1, 199.3 grams of methylone with a purity of 75.3 per cent, pure net weight 150 grams; and in respect of Charge 3, package from the USA containing MDPV of varying purities, total pure weight 38.54 grams.
8 I considered in respect of those charges I had an alternative to the imposition of terms of imprisonment. I had you assessed for suitability for a Community Corrections Order. You were considered a suitable candidate and I made such an order containing the statutory six mandatory conditions, and I also attached a further condition under s.47 of the Sentencing Act.
9 The purpose of imposing the Community Corrections Order was to provide a community-based sentence for a wide range of offending behaviours whilst having regard to and addressing your personal circumstances. The additional conditions required you to perform 150 hours of unpaid community work during the next 12 months. The purpose of attaching that work condition was to adequately punish you in the community. I further directed that you undergo treatment and rehabilitation as directed by the Secretary, and in attaching these treatment and rehabilitation conditions, I had regard to the need to address the underlying causes of your offending and the recommendations, information and matters identified in the pre-sentence report concerning your treatment and rehabilitation.
10 The treatment and rehabilitation that was specified included assessment and treatment including testing for drug abuse or dependency, assessment and treatment, including testing for alcohol abuse or dependency, mental health assessment and treatment that may include psychological, neuropsychological or psychiatric, and any program that addresses factors related to your offending behaviour. I further required you to be under the supervision of and be monitored and managed as directed by the Secretary for the period of the order. I attached this supervision condition for the purpose of ensuring your compliance with the order.
11
I informed you in some detail of my proposal before obtaining your consent to the order. I said at paragraph 74 of my sentencing remarks, "You must understand that if you breach any of the conditions of this order, you may be charged with the offence of contravening a Community Corrections Order. That offence carries a maximum penalty of three months' imprisonment. There may be other consequences. If you are found guilty of the breach in addition to the penalty imposed for that offence, the court might vary or cancel the order or re-sentence you in respect of the offences before me today. That might mean you will be sent to prison as a result. Do you understand that,
Mr Polychronopoulos?" And the transcript records you as answering, "Yes."
I asked, "Do you consent to the order in the terms that I have just outlined in the full knowledge of the consequences of breaching such an order?" And you said, "Yes, I do."
12 You are now before the court for having breached the terms of the Community Corrections Order and also for breaching the Recognisance Release Order that required you to be of good behaviour. You have admitted the breaches and concede there was no lawful excuse for breaching the orders. The charges, as I indicated on the previous occasion, are found proved.
13 The summary of facts accurately sets out the basis upon which the breaching offences are brought before the court. (See Exhibit A.) The prosecution also tendered a breach report (Exhibit B) and you do not take issue with the contents of that report. There is also an addendum to the report included in the exhibit. Exhibit C is really more relevant to the breach of the Recognisance Release Order. Exhibit C is the police summary of driving offences that you committed approximately four months after having entered into the recognisance. Exhibit D are the certified extracts relevant to the offences.
14 On fail drug blood test within three hours of driving, contrary to s.49 of the Road Safety Act, you were convicted and fined $800 as part of an aggregate order with $170.80 statutory costs. Your licence was cancelled. You were disqualified from driving in the state of Victoria for a period of three months. On a charge of fail to stop at a line or red traffic light, with conviction, you were fined $800 as part of an aggregate order with the $107.80 statutory costs. So to make it clear, an aggregate penalty was imposed. Similarly, in respect of driving without P-plates, the penalty was the aggregate order to which I have just referred.
15 On the face of the certified extracts the breaching offences appear somewhat minor in comparison to the offence for which the term of imprisonment was imposed. However, a more careful reading of the police summary indicates that drugs, illicit substances, were involved in your offending.
16 The intercepting officer formed the opinion that you had driven the vehicle while impaired by a drug other than alcohol. You accompanied police for the purpose of a drug impairment assessment. You went to the Knox Police Station. A breath test that was conducted produced a negative reading, but an authorised drug impairment assessor conducted a drug impairment test and, as a result of this test, the assessor formed the opinion that you may be impaired by a drug or drugs. A blood sample was taken from you and analysis of this sample revealed that it contained 0.05 milligrams of methylamphetamine.
17
While being questioned by police, you admitted to injecting yourself with heroin in the early hours of the morning. In addition, you had taken two
30 milligram tablets of Serepax. The conditions at time of driving were overcast, light drizzle and traffic was heavy. You told police you had only had two hours of sleep the night before and you had not slept at all for the two days before that. You also told police that you took the drugs because you suffered from anxiety, depression and panic attacks. In relation to the red light offence, you said "I made a mistake. I thought it was green and I reversed back." As to the failure to display the P-plates, you said, "It's my dad's van and I don't usually drive it."
18 Returning to the breach of the Community Corrections Order. The breach report, and I am not going to read it in full, that will speak for itself, but it demonstrates there have been significant failures to abide with the terms of the therapeutic and rehabilitative aspects of the order. Insofar as the punitive aspects of the order are concerned, there is also significant failure to comply with the unpaid community work. Just short of 50 hours were performed out of 150 ordered, so you have complied with about one-third of the work ordered.
19 So far as the breach of the Recognisance Release Order is concerned, the breaching offences were committed approximately four months after entering the bond. As I say, although the breaching offences on their face appear to be minor, the circumstances are very worrying indeed given the terms of the orders I had made only four months beforehand, all of them directed towards your rehabilitation.
20 The matter first returned before me on 10 May of this year. Mr Lawrence appeared on your behalf, Ms Eales on behalf of the prosecution. On that occasion Mr Lawrence made a comprehensive plea in mitigation and he tendered a number of exhibits. Exhibit 1, a reference from Photius Drakos dated 9 May 2013; a reference from Athina Drakos dated 9 May 2013; and a report from Clint Westig dated 9 May 2013.
21 Your mother gave sworn evidence. I note she also gave evidence in the original plea hearing before me. (See paragraph 45 of my original sentencing remarks.) On that occasion your mother said that you then appreciated the trouble that drugs had caused you, both behaviourally and insofar as they led to criminal activity. She noted how immature you were, that you had the support of your family, that you have changed your peer associations, and that you have come to recognise the level of stress you have caused your family and how this may have contributed to your father's condition. Her evidence more recently before me was along similar lines.
22 On the last occasion (10 May 2013), I adjourned the proceedings to enable you to obtain further psychological material in view of the submissions that Mr Lawrence made on your behalf. The hearing resumed this morning and additional exhibits were tendered on your behalf, including a report from Mr Cummins dated 11 July 2013. I note Mr Cummins had written a report tendered at the original plea hearing. I have re-read that report. Exhibit 5, copy letter from Alex Seremetis dated 19 July 2013; Exhibit 6, copy letter from Dr Benjamin Wallis, 25 July 2013; Exhibit 7, copy letter from Clint Westig, 22 July 2013; and the original report of Mr Cummins dated 6 March 2012 was re-tendered as Exhibit 8. I have re-read all of the exhibits.
23 In my original sentencing remarks I addressed each of the matters required to be taken into account, including your relative youth, your early plea of guilty, your remorse, your prospects for rehabilitation, prior character and antecedents and, of course, the question of the need for personal and general deterrence. Without repeating each of the matters that I am required to take into account today, I adopt the list previously referred to, although the weight to be accorded to each of those matters must now be recalibrated in view of the material now before me.
24 Concerning the breach of the Community Corrections Order, in addition to the matters to which I have just referred, I must also take into account the matters set out in s.20AC(7) of the Crimes Act. That section provides:
"Where a person in respect whom of a sentence has been passed, or an order has been made, under subsection 20AB(1) is dealt with under subsection (6) for the offence in respect of which the sentence was passed or the order was made, the court, in so dealing with the person, shall, in addition to any other matters that the court considers should be taken into account, take into account:
(a) the fact that the sentence was passed or the order was made;
(b) anything done under the sentence or order; and
(c) any fine or other pecuniary penalty imposed, and any other order made, for or in respect of the offence."
25 Insofar as the breach of the Recognisance Release Order is concerned, under s.20A(5)(c) of the Crimes Act, there are five options available. I can impose a monetary penalty; I can amend the order to extend the period for which you are required to give security or be of good behaviour; I can revoke the order and make an order under 20AB; I can revoke the order and deal with you for the offence or offences in respect of which the order was made by ordering you to be imprisoned for that part of the sentence of imprisonment fixed under paragraph 20(1)(b) that you have not served at the time of your release; or I can take no action.
26 Counsel have referred to a number of authorities and make it very clear the only options available are those under the Act. If I revoke the order and order you to serve the term of imprisonment that was included in the original order, it is all or nothing. There is no power to temper the order if I have come to the conclusion that imprisonment is the only appropriate disposition. The authorities also show that there is no statutory weighting of one option over the other. At the end of the day I must impose a sentence or make an order that is of severity appropriate in all the circumstances of the offence.
27 Your counsel submitted that I should make no order in respect of the Community Corrections Order or I should reimpose it, and in respect of the breach of the Recognisance Release Order, I should extend the period of the bond. He urged that I should place significance on your relative youth, the efforts you have made at rehabilitation and your prospects for rehabilitation, the fact that the breaching offences are not importation offences, that you now have secure employment, your mother's evidence speaks to the support and prospects of rehabilitation, that you have witnessed traumatic experiences and that these have affected you and that, although it is belated, you have changed your attitude, you have developed a level of maturity and you have a positive plan to deal with your difficulties and your addictions.
28 On the other hand, Ms Eales submitted that although all of these matters are relevant, the original offending was in respect of very serious conduct, the efforts at rehabilitation, in effect, are too little too late and are, in any event, not firm plans. Although your offending was of a different nature, it is still based on illicit drug use, contrary to the submissions that were made to me at the original sentencing hearing, that you had addressed those problems and had turned your life around; she further submitted that your attitude was one of flagrant disregard for the opportunities that had been afforded to you, not only by the court, but also by Community Corrections Officers. Community Corrections Officers had made every endeavour to help you to comply, you had been given a number of chances but you had not availed yourself of those opportunities.
29 Turning to the course I propose.
30 On the breach of the Recognisance Release Order, I propose to revoke the order and order that you be imprisoned for that part of the sentence of imprisonment fixed under paragraph 20(1)(b) that you have not served at the time of your release. I impose this term after having considered all other sentencing options available to me. Gaol is a last resort, in my view, but it is the only appropriate sentencing option in your case.
31 I have agonised over this decision, but at the end of the day, notwithstanding the compelling plea that was made on your behalf by Mr Lawrence, I find myself in complete agreement with the submissions made by Ms Eales and for the reasons that she has identified. In effect, I adopt her submissions as part of these Reasons for Sentence.
32 In addition, I note that general deterrence and personal deterrence must be accorded significant weight. They loom large, in other words. Although you have belatedly shown signs that you are prepared to do something to address your offending behaviour, you have still got a long way to go.
33 On the breach of the Community Corrections Order, in view of the order I have just made, I propose to cancel the order and make no further order in respect of it.
34 Ms Eales, formalities. Are there any other matters that I need to attend to?
35 MS EALES: No, I don't believe there are, Your Honour. No.
36 HER HONOUR: The security?
37 MS EALES: To estreat the recognisance. Sorry, Your Honour?
38 HER HONOUR: Sorry. The original order, there was a security order, $5000.
39 MS EALES: Yes, Your Honour.
40 HER HONOUR: Do I need to make any order in respect of that?
41 MS EALES: I understand that's a discretionary additional part of the order, Your Honour. I don't think it's mandatory that it needs to be estreated.
42 HER HONOUR: I have not heard any submissions in respect of it.
43 MS EALES: No - - -
44 HER HONOUR: And given the respondent - offender is going to be serving a term of imprisonment, I propose to make no order in respect of the security.
45 MS EALES: Yes, Your Honour. I am pretty sure it is discretionary, Your Honour, yes.
46 MR LAWRENCE: The only matter I'd raise, Your Honour, is that - I am just relying on the material that was given by the Crown - it would appear that the powers on the breach of a CCO, if you revoke the order or cancel the order, would require you to re-sentence. Whereas, there is a power to simply take no action on the breach. I don't know, just on a literal reading, whether there is the power to cancel and then impose no penalty. I might be wrong about that, Your Honour - - -
47 HER HONOUR: Ms Eales.
48 MR LAWRENCE: But my first reading would seem to be that it's an option of either cancelling and re-sentencing or simply taking no action.
49 MS EALES: Yes, that's probably correct, Your Honour, yes, in which case the CCO would stand.
50 MR LAWRENCE: In my submission, Your Honour, given the new order with respect to the Recognisance Release Order, it would be appropriate to simply take no action with respect to the Community Corrections Order.
51 HER HONOUR: Do you agree, Ms Eales?
52 MS EALES: Yes, that is a correct reading of that section.
53 HER HONOUR: Is it a valid order, though?
54 MS EALES: To take no action, just by itself, or - - -
55
HER HONOUR: Can you have a recognisance - sorry, can you have a Community Corrections Order where there's a term of imprisonment of
18 months?
56 MR LAWRENCE: I think the effect of it, Your Honour, would be that the original sentence would stand, that he would be placed - the original sentence of a Community Corrections Order with respect to Charges 1 and 3, and that it would - unfortunately Ms Breen is not here, but my understanding is that the order would simply now be lapsed, as it's not completed. My recollection from what Ms Breen said earlier, and there had been some discussions about his possibility of continuing on the CCO in the meantime, was that the order was essentially over - - -
57 HER HONOUR: Yes.
58 MR LAWRENCE: - - - given his being breached on it.
59 HER HONOUR: All right. You're both right. I will revisit the disposition in respect of breach of the Community Corrections Order and direct no action be taken.
60 MR LAWRENCE: If Your Honour pleases.
61 HER HONOUR: The effect is the order has lapsed in any event - - -
62 MS EALES: Yes.
63 HER HONOUR: - - - which produces in reality the same outcome that I had proposed.
64 MS EALES: Yes.
65 HER HONOUR: Are there any further declarations that I need to make? The total effective sentence, if it needs to be stated, is 18 months.
66
MS EALES: The commencement date, Your Honour, is obviously today,
but - - -
67 HER HONOUR: So what was Mr Jambrich saying?
68 MS EALES: He was just advising me that there is no pre-sentence detention. There's none at all that's already been served.
69 HER HONOUR: Thank you, Mr Jambrich.
70 There is no pre-sentence detention declaration required, since there was no pre-sentence detention.
71 Remove the prisoner, thank you.
72 MR LAWRENCE: As Your Honour pleases.
73 MS EALES: If it please Your Honour.
74 HER HONOUR: Remove the prisoner, please. Thank you.
- - -
Annexure A
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02114
| DIRECTOR OF PUBLIC PROSECUTIONS (CWTH) |
| v |
| ATHANASIOS POLYCHRONOPOULOS |
---
JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 & 28 March 2012 | |
DATE OF SENTENCE: | 23 April 2012 | |
CASE MAY BE CITED AS: | DPP (Cwth) v Polychronopoulos | |
MEDIUM NEUTRAL CITATION: | [2012] VCC | |
REASONS FOR SENTENCE
---
SUBJECT – CRIMINAL LAW
CATCHWORDS – Sentence
LEGISLATION CITED – Criminal Code (Cwth); Criminal Code; Crimes Act 1914 (Cwth); Sentencing Act 1991
CASES CITED – R v Carroll [1991] 2 VR 509; CDPP v Coory [2011] VSCA 316;
R v Kohunui [2009] VSCA 31; R vVerdins& Ors (2007) 16 VR 269
JUDGMENT –
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Ms T Tran | Solicitor for Office Public Prosecutions (Cwth) |
| For the Accused | Mr T Trood | Pica Criminal Lawyers |
HER HONOUR:
75 Anthanasios Polychronopoulos, you are to be sentenced on three charges of import a border-controlled drug contrary to sub-s.307.3(1) of the Criminal Code (Cwth) by virtue of sub-s.11.2(1) of the Code. You pleaded guilty when arraigned before me on 27 March 2012, the date on which the indictment was filed. The maximum applicable penalties for each of the charges is ten years' imprisonment and/or a fine of 2,000 penalty units ($220,000).
Circumstances of Offending
76 The facts are agreed and are well set out in Exhibit A tendered at the plea hearing, Summary of Facts. A copy of Exhibit A will appear as Annexure A to these reasons for sentence. Suffice to say that, by way of summary, on three occasions in May 2011, you facilitated the importation of border-controlled drugs for one Norman Cox, by permitting packages containing the drugs to be sent to you in the name Arthur Nash, at your home address.
Charge 1 - 1 May 2011
77 On 1 May 2011, customs officers intercepted a package sent from China to you containing 199.3 grams of methylone[1] with a purity of 75.3 per cent. The pure net weight was calculated as 150 grams.
[1]3,4-methylenedioxymethcathinone
Charge 2 – 5 May 2011
78 On 5 May 2011, customs officers intercepted another package sent from China addressed to you. It contained 496.5 grams of methylone[2] with a purity of 85 per cent. The pure net weight was calculated at 422 grams.
[2]3,4-methylenedioxymethcathinone
Charge 3 – 13 May 2011
79 On 13 May 2011, customs officers intercepted three packages from the USA addressed to you. The packages contained MDPV[3] of varying purities. The total pure net weight of MDPV on this occasion was 38.54 grams.
[3]Methylendioxprovalerone
Arrest and Interview
80 On 31 May 2011, Australian Federal Police (“AFP”) officers executed a search warrant at your home. You voluntarily showed investigators a small plastic bag containing crystal powder which you identified as ice and another bag containing one capsule which you identified as ecstasy. During the execution of the search warrant, your aunt told police that within the family you are known as “Nash”. As I understand it, the name “Arthur” is an Anglicisation of your Christian name.
81 On 25 July 2011, you participated in a record of interview during which you made full and frank admissions as to your drug habit and your involvement in the importation. You told police that you were unaware of the quantities involved but appreciated there was a risk of being raided by police in the event of discovery of the importations. Cox told you that, if intercepted, “you’ll get a slap on the wrist” by way of punishment.[4] You also admitted to helping Mr Cox to import the drugs by transferring cash overseas in the amounts of $2000 and $990, and a further $990.
[4]Q 228
82 As to what you were to receive for your assistance, Mr Cox transferred a car to you and forgave a drug debt of about $1500 you owed him.
83 At the time of offending, you were aged 20 and living at home with your parents and younger sister.
General Sentencing Principles applicable to Federal Offenders
84 In determining the sentence to be passed or the order to be made I must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offences[5].
[5]16A(1) Crimes Act 1914 (Cth).
85 There are many factors that I must take into account when sentencing you, including:
(1) principles of general deterrence[6] and denunciation;
[6]DPP v El Karhani (1990) 97 ALR 373; 21 NSWLR 370
(2)the nature and circumstances of the offence[7], including your moral culpability;
[7]16A(2)(a)
(3) the maximum applicable penalty;
(4)if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct[8];
[8]16A(2)(c)
(5) any injury, loss or damage resulting from the offence[9];
[9]16A(2)(e)
(6) the degree to which you have shown contrition for the offence[10];
[10]16A(2)(f)(ii)
(7) the fact that you have pleaded guilty to the charges[11];
[11]16A(2)(g)
(8)the degree to which you have cooperated with law enforcement agencies in the investigation of the offences or of other offences[12];
[12]16A(2)(h)
(9)the deterrent effect that any sentence or order under consideration may have on you[13];
[13]16A(2)(j)
(10)the need to ensure that you are adequately punished for the offences[14];
(11)your character, antecedents, age, means and physical or mental condition[15];
(12) your prospects of rehabilitation[16];
(13)the probable effect that any sentence or order under consideration would have on any of your family or dependants[17];
(14)in determining whether a sentence or order under s.19B(1), 20(1) or 20AB(1) is the appropriate sentence or order to be passed or made, I must have regard to the nature and severity of the conditions that may be imposed on, or may apply to you under that sentence or order[18]; and
(15)to the extent permitted, principles of parsimony[19]. I can only pass a sentence of imprisonment if, having considered all other available sentences, I am satisfied that no other sentence is appropriate in all the circumstances of the case[20].
[14]16A(2)(k)
[15]16A(2)(m)
[16]16A(2)(n)
[17]16A(2)(p) – also note family and family members include - de facto partner, child as defined in section 3, and anyone else who would be a member of the offenders family as defined see 16A(4). Also note that there must be exceptional circumstances before this factor can be taken into account – Markovic v R 2010 VSCA 105
[18]16A(3)
[19]R v Carroll [1991] 2 VR 509
[20]17A(1). R v Carroll [1991] 2 VR 509 and 17A(1). Also note that in R v Robison (1992) 62 A Crim 374 at 381 Marks, Beach and Coldrey JJ said:
“Although general deterrence is undoubtedly relevant, it is not without significance that it is not expressly mentioned. The sentencing provisions of the Crimes Act have by successive amendments become elaborate and complex, but their evident purpose is to ensure that custodial sentences are not imposed where alternatives might achieve, among other things, realistic measures of specific deterrence and rehabilitation.”
86 I now turn to the relevant sentencing factors.
Principles of general deterrence and denunciation
87 It is trite to say that involvement in the importation of border-controlled drugs, at any level, is a very serious matter. Ordinarily, in cases such as these, where the harmful consequences of drug importation are to be presumed[21] and where, detection is difficult, deterrence is to be given chief weight on sentence. Accordingly, “stern punishment will be warranted in almost every case”[22]. This means that mitigating factors such as prior good character, good rehabilitation prospects and co-operation with authorities may attract less weight.
[21]CDPP v Coory [2011] VSCA 316 at [9]
[22]CDPP v Coory [2011] VSCA 316 at [35]
The nature and circumstances of the offences
88 I have already referred to the nature and circumstances of your offending. I note that you played a limited and minor, although important role. You were charged as an aider, abetter, counsellor or procurer – not as a principal.
89 You were not involved in the further intended trafficking, manufacture or distribution of the drugs. Although you profited from the importation, in that the principal transferred to you a car of little value and forgave a modest drug debt that you owed him, you stood to gain nothing from the ultimate sale or distribution of the drugs.
If the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct:
90 The three importations occurred within a fortnight. It is not possible to say the date on which those items were ordered by Mr Cox. On all three occasions, the items were sent to your home address and to you under a name readily identifiable as yours.
Any injury, loss or damage resulting from the offence
91 I have already referred to the fact that the harmful consequences of drug importation are to be presumed. No suggestion was made to the contrary.
The degree to which you have shown contrition for the offence
92 I accept that at first you did not appreciate the gravity of your offending. However, you have come to realise the seriousness of what you have done and the prosecution accepts, as do I, that you are remorseful for your conduct.
The fact that you have pleaded guilty to the charges
93 You indicated your intention to plead guilty at the earliest opportunity. The committal proceeded by way of straight hand-up brief and you entered a plea of guilty to the charges ultimately contained in this indictment. In determining the weight to be given to your guilty plea, I take into account:
(1) the timing of your plea;
(2) your plea is indicative of your true remorse
(3)you have avoided the cost and inconvenience of a trial, no witnesses have been required to give evidence, either at committal or upon your trial;
(4)your plea is consistent with your cooperation with police evidenced in the record of interview; and
(5)there is enormous social utility involved in your plea.
The degree to which you have cooperated with law enforcement agencies in the investigation of the offences or of other offences
94 It is accepted by the prosecution that you gave your full cooperation to the police in the investigation, not only of these offences but also in relation to Mr Cox’s broader criminal activities. You explained the general nature of Mr Cox’s drug business, where he sold the drugs and also where he stored them.[23]
[23]See, for example, record of interview Q 162 – 172
95 In addition, you agreed to make a statement against Cox to be used to prosecute him. Unfortunately, Cox died of a suspected drug overdose before you were called upon to fulfil your offer. Even so, your past cooperation and offer of future cooperation must be given significant weight.[24]
[24]See R v Kohunui [2009] VSCA 31 at [23] to [30]
96 I am satisfied that your level of cooperation was meaningful and given with sincerity.
The deterrent effect that any sentence or order under consideration may have on you
97 You were charged following the record of interview on 25 July 2011, at a filing hearing that took place that day at the Magistrates’ Court at Melbourne, and you were granted bail unopposed. Since then, you have had these charges hanging over your head. As a condition of your bail, you were required to participate in CISP programs[25] (Court Integrated Services Programs) which offered supervision and referral for drug and other counselling. You completed this program successfully, as is evidenced by Exhibit 2.[26]
[25]Court Integrated Services Program
[26]Final Progress Report dated 15 November 2011
98 Perhaps I will just pause here. I have cross-referenced much of what I have said in footnotes, I have not read the footnotes out. I do not intend to unless either party wishes me to. They will appear in the final revised reasons.
99 MR TROOD: I do not Your Honour.
100 MS TRAN: Neither do I Your Honour.
101 HER HONOUR: Thank you Ms Tran, thank you Mr Trood.
102 Although you seemed to struggle to attend appointments at the beginning of the program and even appeared to be under the influence of substances on early occasions, with the assistance of counsellors and through your commitment to the program, you were able to abstain from illicit substances and then attended all appointments as directed. You engaged well with counsellors and no longer presented under the influence. Claire Marriott[27] said in her report:[28]
“Mr Polychronopoulos has displayed excellent commitment in engaging in all supports to address his drug and mental health issues and investing in a positive future … [he] is strongly encouraged to continue to engage [in further counselling].”[29]
[27]CISP case manager
[28]Exhibit 2
[29]At pages 3-4
103 It is to your great credit that you have responded so positively to the program that the Magistrate ordered you to attend. It is encouraging that these programs are available at the earliest point of contact that an offender has with the Court system and that they so effectively target rehabilitation.
The need to ensure that you are adequately punished for the offences
104 I take this factor very much into account.
Your character, antecedents, age, means and physical or mental condition
105 As I said before, you are now aged 21 and committed the offences when aged 20. Your personal history is well set out in the report of Jeffrey Cummins, consulting clinical and forensic psychologist.[30]
[30]Exhibit 5, report dated 6 March 2012
106 You were educated to around Year 10, when you left school to participate in a TAFE pre-apprenticeship course in auto mechanics. Initially, you were unable to get an apprenticeship and did various unskilled labouring jobs. Eventually you did obtain an apprenticeship but left there shortly after your arrest on these charges. As I understand it, you were unemployed for a period but managed to obtain part time or casual work as a panel beater. This fact is confirmed by Exhibit 4, reference from Anthony Talarico.[31] Unfortunately, you have recently ceased work there due to a downturn in the business. You have managed to obtain part time casual work on Thursday and Saturday nights as a drink waiter.
[31]Dated 2 February 2012
107 As to your association with illicit drugs, you started smoking cannabis at age 14. You only stopped your consumption of it in about August or September of last year. Between the ages of 16 and 18, you commenced using ecstasy tablets on weekends at nightclubs. Around this time, you also used amphetamines. By age 18, you commenced smoking crystal methamphetamine. You stopped using this also around September 2011. Between the ages of 18 and 20, you smoked heroin up to three days a week. You even experimented injecting the drug. You have also experimented with cocaine and your counsel has described you as a “poly drug user”.
108 You have no prior convictions, although you were dealt with by way of diversion for possessing and using amphetamines.
109 Mr Cummins’ report documents an angry young man beset by mental health issues. This is confirmed by the evidence given by your mother, Sandra Ann Polychronopoulos. You exhibited behavioural difficulties from an early age and lived away from home for two periods. Mr Cummins diagnosed you with a chronic adjustment disorder with mixed anxiety and depressed mood. As far as he could ascertain, this adjustment disorder developed while you were having difficulties in secondary school and then when finding suitable employment. Mr Cummins also opined that you have been suffering from a chronic depressive disorder from at least your mid-teenage years. He considers you may also be suffering from a major depressive disorder.
110 In Mr Cummins’ opinion, you should be taking antidepressant medication and could most probably also benefit from taking anti-anxiety medication. He also considers that you should receive ongoing mental health treatment.
111 In Mr Cummins’ opinion, some aspects of your presentation depicted symptoms indicative of a schizoid personality disorder and a paranoid personality disorder; although, on balance, in his opinion, the primary diagnoses are in the domain of a depressive disorder and a chronic adjustment disorder.[32]
[32]Exhibit 5, page 6
112 On top of this, in early 2011, you witnessed a friend die of a drug overdose. It is likely there may be aspects of Post Traumatic Stress Disorder. Mr Cummins stated that you presented as having a very significant “attitude problem” and that although you denied being exposed to any major traumas, your presentation was not inconsistent with that frequently observed in patients who have been exposed to significant traumas.[33]
[33]Exhibit 5, page 7
113 Significantly, Mr Cummins said:
“In my opinion from a mental health perspective he presents as a vulnerable person and as someone who should be receiving ongoing talking-based treatment provided by either a psychologist or a psychiatrist. He should also now be taking an antidepressant and could also benefit from taking anti-anxiety medication. Essentially, at interview he stated he will attend upon a psychologist or psychiatrist and take mood stabilising medication if and when he decides to do so. In my opinion his reluctance to seek mental health treatment is most probably integral to his mental health problems in the sense he does not adequately appreciate the true extent of his mental health problems.”[34]
[34]Exhibit 5, page 7
114 Mr Cummins noted a past suicide attempt and considered that given your current mental health problems, your incarceration would lead to a deterioration in your mental health and perhaps to the point where you pose the risk of self-harm.[35] Mr Cummins considers your mental health prognosis to be guarded.[36]
[35]Exhibit 5, page 7
[36]Exhibit 5, page 8
115 A report prepared by Lawrence Hayden, consultant psychologist, was tendered on your behalf.[37]
[37]Exhibit 3, dated 7 February 2012
116 Dr Jigau referred you to Mr Hayden on concerns of anxiety, depression and panic disorder. Mr Hayden considered that you appeared to have achieved critical insight that drug use has been a large part of your problems in the past.[38] Mr Hayden had concerns for your wellbeing on one occasion even referring you to the Emergency Department of the Maroondah Hospital, given the apparent risk of self-harm that you presented. Mr Hayden considers you suffer from very poor emotional intelligence. You also suffer from negative neuroplasticity of the brain, which has resulted in a significant sense of failure and ultimately very low level of self-worth and self-esteem.
[38]Exhibit 3, page 1
117 Mr Hayden considered your current state of mental health to be very poor but that you could and should respond very well to positive cognitive behaviour therapy. He considered that a custodial sentence will definitely worsen all of your symptoms of poor mental health and that, as a young adult, you should respond positively to improving the positive neuroplasticity of your brain through the therapy to which I have referred.[39]
[39]Exhibit 3, page 2
118 Dr Jigau’s report[40] confirms that as at July 2011, you had been his patient for the previous three years. Dr Jigau noted that you have been suffering from severe major depression, panic disorder, and anxiety disorder. You have been treated with antidepressants, anxiolytics and counselling. In all the circumstances, I am satisfied that at the time of offending and now, you suffer from the various mental health conditions to which I have referred. Your counsel has quite properly conceded that these conditions in no way contributed to your offending. However, importantly, they are relevant to disposition. I am satisfied that if incarcerated, gaol will be more onerous for you because of your condition and that there is a serious risk that these conditions will be aggravated.[41]
[40]Exhibit 1, dated 21 July 2011
[41]Factors 5 and 6 referred to in paragraph 32 of R vVerdins& Ors (2007) 16 VR 269
Your prospects of rehabilitation
119 Notwithstanding the assessment report prepared by Olga Perifanos[42] that states Community Correctional Services has assessed your general risk of re-offending as being high, according to the VISAT, there are still reasonable prospects for your rehabilitation. I have already referred to your very positive involvement in the CISP program and the measures that can be taken to improve your mental health, as reported by Mr Hayden and Mr Cummins. As I have said, I have also heard sworn evidence from your mother. She highlighted the difficulties you have had in the past and how you struggled over the years to cope with your various issues. Fortunately, your mother has noticed very positive changes in you. You have become more involved in matters at home and your communication with members of your family is much better. You have even started helping around the house.
[42]Exhibit B, dated 27 March 2012
120 You have changed your peer associations and now mix with people who are more likely to positively influence you. Your father is unwell, having been recently hospitalised after collapsing at home. You have come to recognise the level of stress you have caused your family and how this may have contributed to your father’s condition. You have apologised to everyone for the stress you have caused them.
121 Your mother says you now appreciate the trouble that drugs have caused you, both behaviourally and insofar as they have led to criminal activity. Your mother also notes just how immature you are and that you enjoy the love and support of all of your family. Your mother’s evidence is consistent with the documentary evidence to which I have referred.
122 In addition, a reference from your aunt, Athina Drakos, was tendered on your behalf.[43]
[43]Exhibit 6, dated 5 February 2012
123 Another matter evidencing your good progress is the fact that you have managed to stay out of further trouble. You do have a pending matter as a result of committing these offences. I have referred to the fact that you were previously on a diversion program for use and possess amphetamines. You will have to face these charges at the Ringwood Magistrates’ Court on 26 April 2012.
124 This factor, together with your relative youth and your immaturity, are important sentencing considerations.
The probable effect that any sentence or order under consideration would have on any of your family or dependants
125 It has not been suggested that any exceptional circumstances exist to give weight to this matter.
In determining whether a sentence or order under 20AB(1) is the appropriate sentence or order to be passed or made, I must have regard to the nature and severity of the conditions that may be imposed on, or may apply to you under that sentence or order
126 I shall return to this topic shortly, but I do note that I have taken this matter into account.
Principles of parsimony.
127 I can only pass a sentence of imprisonment if, having considered all other available sentences, I am satisfied that no other sentence is appropriate in all the circumstances of the case[44].
[44]17A(1)
Submissions as to penalty
128 Ms Tran, on behalf of the prosecution, referred to a number of authorities.[45] And again, without repeating them, they will appear as footnote 45. She quite properly conceded that your mental health conditions are relevant in the way I have already mentioned. Notwithstanding this, she submits that in all the circumstances an immediate term of imprisonment is the only available sentencing option. As to range, she submits the appropriate terms range as follows:
Charge 1 – twelve to fifteen months' imprisonment;
Charge 2 – eighteen to thirty months' imprisonment; and
Charge 3 – six to twelve months' imprisonment.
[45] Nguyen & Phommalysack v R [2011] VSCA 32
129 She submits there ought be some cumulation between counts, given the discrete nature of each offence. She proposes a total effective sentence of between 18 and 30 months with a minimum to serve of two to six months. Ms Tran submits gaol is the only alternative, taking into account:
· general deterrence is the predominant sentencing factor in drug cases;
· the offences are objectively serious;
· despite your limited role, it is not a decisive factor that you did not know the quantities being imported - you were reckless in this regard;
· she concedes that weight must be given to your remorse, your plea of guilty and your past cooperation;
· although the weight ought be given to your relative youth and your prior good character, these matters carry less weight; and
· although Coory’s case[46] does not say that a non-custodial disposition can never be given in such a case, the situations in which such a disposition is open will be limited.
[46]Malich Coory [2011] VSCA 316
130 On your behalf, Mr Trood submitted that the facts in the present case can be distinguished from those in Coory. He submitted that in the final analysis it is a matter of weighing each of the relevant factors to which I have already referred. Mr Trood submits that your relative youth is an important sentencing consideration given your mental health problems, your immaturity and your prospects for rehabilitation. He drew attention to the principles set out in Mills,[47] where Batt JA referred to three important considerations when sentencing youthful offenders.
“(i) Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
(ii) In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
(iii) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified.”
[47]4 VR 235 at [241]
131 Mr Trood places great emphasis on the very positive steps you have taken towards your rehabilitation. He submits that, as to Charges 1 and 3, I do have an alternative to the imposition of terms of imprisonment. He submits a Community Corrections Order is open and should be addressed to rehabilitative factors as well as punitive aspects. As to Charge 2, which involves the largest quantity of drugs in these importations, he concedes that a term of imprisonment must be imposed. However, he submits that it is open to release you forthwith on a recognisance to be of good behaviour under s.20(1)(b) of the Crimes Act.
Sentences to be imposed
132 I must weigh all of the matters to which I have referred and I must impose a sentence or make an order that is of a severity appropriate in all the circumstances.
133 Although “young person” is not defined in the Crimes Act, I take into account your numerical age as well as your immaturity. I am satisfied that general deterrence is an important consideration, but I am also satisfied that in the circumstances of your case, your rehabilitation is also an important sentencing objective. I should add, you are not a young offender as defined in the Sentencing Act 1991 to the extent that this is necessary or relevant. But I do take into account your relative youth.
Charge 2
134 In all the circumstances I have no alternative to the imposition of a term of imprisonment, although I am of the view that it is appropriate to direct that the period of imprisonment be not immediately served. On Charge 2, you are convicted and sentenced to 18 months’ imprisonment.
135 I further direct that you be released forthwith upon giving security in the sum of $5000 to be of good behaviour for three years.
136 You must not during that period of three years commit any further breach of the law. If that occurs you will be in breach of the terms of the recognisance and should expect to be brought back before the court and be ordered to serve the whole of the sentence I have just passed.
137 The purpose of my making the Recognisance Release Order is to give you the opportunity to not serve the sentence I have passed and to give you the chance to rehabilitate yourself so that you may become a useful and contributing member of the community.
Charges 1 and 3
138 I agree with Mr Trood. I do have an alternative to terms of imprisonment. You have been assessed as being a suitable candidate for a Community Corrections Order. I may only make such an order if:
(a) you have been convicted of an offence punishable by more than five penalty units; and
(b) the court has received a presentence report and has had regard to any recommendations, information or matters identified in the report; and
(c) you consent to the order.
I have said that it is a prerequisite that you have been convicted, that is a requirement under the Commonwealth Crimes Act before such a disposition is available.
139 The report contains certain information and a number of recommendations.
140 I propose making such an order but can only do so if you consent to my taking such a course, as I said. So that you are in a position to make an informed decision about whether you will give your consent, I will tell you something about the course I propose.
141 The length of the order will be two years and it will commence today.
142 Every Community Corrections Order including the one I propose in this case contains six mandatory conditions. They are:[48]:
[48] S45
1.you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
2.you must report to, and received visits from the Secretary during the period of the order;
3.you must report to the Community Corrections Centre specified in the order, in this case Ringwood Community Correctional Services within two clear working days after the order coming into force, namely within two days of today;
4.you must notify the Secretary of any change of address or employment within two clear working days after the change;
5.you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
6.you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
143 I am also required to attach at least one condition in accordance with s.47 of the Sentencing Act 1991. In attaching these conditions I bear in mind[49] –
a) the principle of proportionality;
b) the purpose for a sentence may be imposed, and;
c) the purpose of a Community Corrections Order as set out in s.36 of that Act.
[49] 48A
144 I should add, these are factors in addition to the matters I have already referred to earlier in these reasons for sentence.
145 I note that the purpose of a Community Corrections Order is to provide a community based sentence for a wide range of offending behaviours, while having regard to and addressing your circumstances.
146 These are the proposed additional conditions:
1) The court requires you to perform 150 hours of unpaid community work during the next 12 months[50]. The purpose for attaching this work condition is to adequately punish you in the community[51].
[50] See 48C
[51] S48C
2) The court requires you to undergo treatment and rehabilitation which I shall soon specify and as directed by the Secretary unless otherwise directed by the court[52]. In attaching this treatment and rehabilitation condition I have regard to;
a. the need to address the underlying causes of your offending; and
b. the recommendations, information and matters identified in the presentence report concerning your treatment and rehabilitation. I note that the presentence report has been tendered as an exhibit.
[52] 48D
147 The treatment and rehabilitation specified by the court is as follows:
oassessment and treatment (including testing) for drug abuse or dependency;
oassessment and treatment (including testing) for alcohol abuse or dependency;
omental health assessment and treatment that may include psychological, neuropsychological, or psychiatric; and
oany program that addresses factors related to your offending behaviour.
c. You will be required to be under the supervision of, and be monitored and managed as directed by the Secretary for the period of the order.[53] I propose to attach this supervision condition for the purpose of ensuring your compliance with the order.
3) My proposal then is to record a conviction and make a community corrections order containing all of the conditions that I have just mentioned[54]. I referred earlier to the fact that a conviction must be recorded before this disposition is available for a Federal offence [see s.20AB(1) of the Crimes Act].
4) You must understand that if you breach any of the conditions of this order you may be charged with the offence of contravening a CCO[55]. That offence carries a maximum penalty of three months’ imprisonment. There may be other consequences. If you are found guilty of the breach, in addition to the penalty imposed for that offence, the court might vary or cancel the order or re-sentence you in respect of the offences before me today. That might mean you will be sent to prison as a result.[56] Do you understand that Mr Polychronopoulos?
[53] 48E
[54] sec 20AB(1) Crimes Act Cwth – a conviction must be recorded
[55] 83AD
[56] 83AS
148 ACCUSED: Yes.
149 HER HONOUR: Do you consent to the order in the terms that I have just outlined, in the full knowledge of the consequences of breaching such and order?
150 ACCUSED: Yes I do.
151 HER HONOUR: All right. My associate will now prepare the order in the terms I have indicated. I have a draft Community Corrections Order, perhaps if counsel would follow, I will repeat the conditions and you can follow along.
152 MR TROOD: Thank you Your Honour.
153 HER HONOUR: 150 hours unpaid community work over 12 months. Treatment and rehabilitation, assessment and treatment including testing for drug abuse or dependency. Assessment and treatment including testing for alcohol abuse or dependency. Mental health assessment and treatment including psychological, neuropsychological and psychiatric - please take out the words "in a hospital or residential facility". Undergo programs or courses and at addressing factors relating to the offending. Supervision, under supervision for the period of the order, that is the two years. The order is with conviction as is reflected at the top of the page.
154 Are there any other amendments that are necessary to the draft apart from the removal of the words, "in a hospital or residential facility"?
155 MS TRAN: No Your Honour.
156 MR TROOD: No Your Honour.
157 HER HONOUR: Very well, once those corrections have been made I will sign the order. I should say, the offender needs to sign first. Mr Polychronopoulos you may step out of the dock and sit behind your counsel.
158 There seems to be some problem with the paperwork on the computer. In taking out the words, "in a hospital or residential facility" the computer does not recognise amending the order. But I propose that those words be struck out of the physical order, unfortunately that will mean that the court order that will be on the computer will be different to the physical order, but I will make a notation that that condition as to mental health assessment and treatment does not include the requirement to undergo treatment in a hospital or residential facility. Hopefully that will be recognised on the court order.
159 So the physical order will be crossed out, it will be initialled by Mr Polychronopoulos and then by myself, and hopefully we can sort out the computer at some later stage.
160 While my associate tries to make sense of what I have just said in these reasons, I will now turn to the draft of the Recognisance Release Order.
161 MR TROOD: I'm sorry, there is just one minor matter too Your Honour. It's just been pointed out to me, the address on the order is 22 Renou, R-e-n-o-u, there is no "d" on the end of Renou, it's spelt R-e-n-o-u, so if Your Honour's associate's making some amendments or trying to, perhaps if just the "d" can be deleted from the address.
162 HER HONOUR: Thank you very much. I think there is a mistake in the Recognisance Release Order as well. But I will hand it over and Ms Tran is probably the most experienced in these. It really relates to the charges, because this order applies only to two charges, not three charges and three charges are listed.
163 MS TRAN: Your Honour, I've actually prepared - - -
164 HER HONOUR: You have got one.
165 MS TRAN: I do and I do apologise Your Honour, my learned friend and I were just discussing that aspect, whether we leave it as a conviction for three offences and nominate which offence it relates to, or should we leave it as one charge then nominate the specific count that Your Honour's convicted him, with respect of the recognisance order.
166 HER HONOUR: My feeling, but I will hear submissions on it, is that this order relates only to two charges, 1 and 3 - - -
167 MS TRAN: Two Your Honour, two.
168 MR TROOD: Just Charge 2 for the recognisance.
169 HER HONOUR: I am sorry, you are right, just to Charge 2. The Community Corrections Order applies to the two charges and we have covered those two charges - - -
170 MS TRAN: Yes.
171 HER HONOUR: In the other order.
172 MS TRAN: Yes. It might be appropriate if that - - -
173 HER HONOUR: It might be misconstrued - - -
174 MS TRAN: Yes, Your Honour.
175 HER HONOUR: If it is referred to in the Recognisance Release Order again, that there is a combination penalty of both the Recognisance Release Order and the Community Corrections Order.
176 MS TRAN: Yes.
177 HER HONOUR: And that is not what I intended, these are stand alone convictions.
178 MS TRAN: Yes, Your Honour.
179 HER HONOUR: And dispositions, so - - -
180 MS TRAN: I think in the circumstances what I'd do, with Your Honour's agreement is if we struck out one and put that as one import, and relates to Count 2. So that is - - -
181 HER HONOUR: Yes.
182 MS TRAN: Yes.
183 HER HONOUR: That would be great.
184 MS TRAN: Yes, that is specific. I'll hand-up the draft.
185 HER HONOUR: Thank you. Do you have multiple copies of this?
186 MS TRAN: Not for signature Your Honour but I can prepare multiples.
187 HER HONOUR: That is all right, we can make photocopies.
188 MS TRAN: Thank you Your Honour.
189 HER HONOUR: I think the paperwork is now ready to sign. I have explained, so far as the Recognisance Release Order is concerned I have explained to Mr Polychronopoulos the purpose and effect of the order. I have explained the consequences that may follow if he follows without reasonable excuse to comply with the conditions of the order.
190 The order may be discharged or varied under s.20AA of the Crimes Act. Mr Polychronopoulos, all of this has been explained to you. You will be bound by the terms of the recognisance. Do you agree to be so bound, knowing the consequences of breaching such an order:
191 ACCUSED: Yes, Your Honour.
192 HER HONOUR: All right. You can sign first.
193
Statement under sec 6AAA Sentencing Act (Vic) 1991.
194 I do not think s.6AAA of the Sentencing Act is mandatory on Charges 1 and 3, probably not to Charge 2 either since the order is not made under the Sentencing Act. The order for imprisonment is under the Commonwealth Crimes Act and I do not propose to make such a statement but I am prepared to hear counsel, and be persuaded otherwise. Mr Tran?
195 MS TRAN: Your Honour, it's been subject of a lot or argument, I don't propose to make any more submissions.
196 Thank you very much.
197 MR TROOD: I don't propose to say anything more.
198 HER HONOUR: Thank you very much. Are there any other matters?
199 MR TROOD: No Your Honour.
200 MS TRAN: No Your Honour.
201 HER HONOUR: I thank you both for your assistance.
202 MS TRAN: May I be excused Your Honour.
203 MR TROOD: May I be excused Your Honour.
204 HER HONOUR: Thank you, thank you very much.
- - -
ANNEXURE “A”
THE QUEEN
– v –
ATHANASIOS POLYCHRONOPOLOUS
PLEA SUMMARY OF FACTS
Indictment
The accused has pleaded guilty to three charges of aid, abet, counsel or procure the import of a border controlled drug. The drugs imported are as follows:
· Charge 1 and 2: 3,4 methylenedioxymethcathinone (methylone)
· Charge 3: methylendioxprovalerone (MDPV)
These drugs are analogues of a border controlled drug, namely methcathinone.
Methcathinone is a border controlled drug, being item 95 in s.314.4(1) under the Criminal Code (the Code). Methylone and MDPV are drug analogues of methcathinone by virtue of s.314.4(2)(d)(i) and (ii) and are thus border controlled drugs under the Code. Specifically, a forensic analyst has confirmed that[57]:
[57] SALOUROS, NMI.
· Methylone differs from methcathinone by the addition of a cylic diether[58].
[58] SALAUROS brief pg 234 para 3.
· MDPV differs from methcathinone by the addition of (i) a cyclic diether group, (ii) an ethyl (alkyl) group, where the group is attached to carbon and (iii) a propyl (alkyl group) where the group is attached to a carbon and nitrogen[59].
[59] SALAUROS brief pg 234 para 4.
Charge 1: 1 May 2011
On 1 May 2011 a mail article with Express Mail Service reference EE439014474CN was intercepted by Customs Officers at the Australia Post Melbourne Gateway Facility (MGF)[60]. The package was sent from China and was addressed to “Arthur Nash, Australia, 22 renou Rd Wantirna South, Victoria, 3152 Australia”. The package contained a heat-sealed silver pouch, within which a further plastic resealable bag containing a fine off-white powdered substance was secreted. The net weight of the powder was 199.3 grams. Presumptive testing was inconclusive[61] and a sample of the substance was sent to the National Measurement Institute (NMI) for analysis.
[60] NOONAN, 1-2
[61] POMEROY, NAE served 21/11/11, pg 1 of 4.
NMI analysis revealed the powder to be 3,4 methylenedioxymethcathinone (methylone) with a purity of 75.3 %[62]. Based on the results of this NMI analysis, AFP forensic services have calculated the net weight of pure methylone imported by the accused on this occasion to be 150.0 grams[63].
[62] HAU certificate:112280_1 (PS3226996), 30-31
[63] POMEROY, pg 2 of 4
Charge 2: 5 May 2011
On 5 May 2011 a further mail article with EMS reference number EE439014783CN was intercepted by Customs officers at MGF[64]. The package was sent from China and addressed to “Arthur Nash, Australia, 22 Renou Rd Wantirna South, VIC, 3112 Australia”. The package contained a silver pouch which in turn contained a clip-seal bag containing 496.5 grams of fine pale cream powder. Presumptive testing of the powder indicated the presence of 3,4 methylenedioxymethcathinone (methylone)[65].
[64] RASK, 9-11
[65] CRAIG, NAE served 21/11/11, report pg 1 of 2.
NMI testing determined the powder to be 3,4 methylenedioxymethcathinone (methylone) with a purity of 85 %[66]. The pure net weight of methylone imported by the accused on this occasion was 422.0 grams[67].
[66] HAU certificate:112061_1 (PS3227907), 30-31
[67] CRAIG, report pg 2 of 2.
Methylone is an ecstasy-like substance which can be consumed on its own. It is also the main ingredient of a liquid designer drug known as “explosion”.
Charge 3: 13 May 2011
On 13 May 2011 three mail articles was intercepted by Customs officers at MGF[68]. These intercepted packages, had tracking references of CP965654117US, CP965654094US and CP965654085US respectively. All three packages contained an envelope which further contained a silver foil sachet within. The silver foil contained respectively 292.2 grams, 286.5 grams and 253.3 grams of off-white powder[69]. The packages had been sent from the United States of America addressed to “Arthur Nash, 22 Renou Road, Wantirna South, Victoria, 3142”.
[68] TARGA, 12-14
[69] POMEROY, pg 2 of 4.
Samples of powder from each of the three packages was sent to NMI and analysis revealed the substance to be methylendioxprovalerone (MDPV) with purities varying between 4.4% and 4.9%[70]. The pure net weight of MDPV imported by the accused on this occasion was a total of 38.54 grams (being 13.4 grams, 14.0 grams and 11.14 grams respectively)[71].
[70] HAU certificate: 112282_2 (PS3228725), 34-35
[71] CRAIG, report pg 2 of 2
MDPV is a close derivate of methcathinone. It has the nickname of ‘fake cocaine’ as the effects are similar and users of the substance ‘snort’ the powder to ‘get high’.
Search and arrest
On 31 May 2011 AFP officers executed a search warrant at 22 Renou Road, Wantirna. The accused was present and was cautioned and availed of his rights. The accused produced to investigators a small plastic bag containing some crystal powder and another bag with one capsule. He told investigators one is “ice” the other was “ecstacy”. The accused otherwise declined to make any comment about his involvement in the importations or the use of the name “Arthur Nash”. During the execution of the search warrant, the accused’s aunt provided a statement confirming the accused was known within the family as ‘Nash’[72].
[72] DRAKOS, 62
A computer was seized[73] from the bedroom of the accused and subsequently analysed by the AFP computer forensic team[74]. Examination of the computer concentrated on Facebook live chats[75] involving the accused whose Facebook name as found on the computer was “Nash Poly”.
[73] BIRCH, 56-58
[74] WILLS, 64-144
[75] Facebook live chats is a web-based instant messaging application which allows users to send and receive text messages with other Facebook users in real time.
Record of interview
On 25 July 2011, the accused attended AFP Melbourne headquarters to participate in a record of interview. During the interview, he admitted:
· he smoked the substance (ice) through a glass crack pipe or if he was desperate, on the foil (Q 65-66) and was a regular user of ice (Q 72) and was aware it was illegal to have possession of drugs (Q 120)
· in relation to the import offences, he stated he was waiting to receive the parcels that had been intercepted (Q149) – he was not aware of how much was in the parcel or what was in the parcel, “I’d just been told not to open it” (Q 148)
· he admitted he was waiting to receive the parcels and he had instructions to receive them, not to open them and bring them were he was supposed to bring them (Q151) upon the instructions of Norman Cox (Q152).
· Q 154: “I used to regularly see Norman and we’d do – we’d have different drugs together. Sometimes maybe heroin, maybe methamphetamines, different things like that and I have a problem with drugs. I would get a bit of stuff off him. Sometimes maybe owe him a little bit of money or have to do a few favours for him. He then asked me if I would agree to receive some parcels of what he told me was a research drug and that I wouldn’t get into trouble about it. He didn’t tell me how much. I just wasn’t supposed to open it and because he knew that I liked this car and I had money to owe him. He then told me that if I do that for him he said I wouldn’t – I could then take the car and he would cancel my debts with him. But he did tell me that this was a research drug and it hadn’t been made illegal yet. The only reason why he could not do it was because he thinks his house was – wasn’t appropriate. He thought he was, you know, being watched by the police or something like that. Then I – then I agreed to make this decision”.
· Q 174: “No. I had nothing to do with any ordering or anything. All I did was supply him with my address”.
· Q 227: “well, I did owe him a bit of money that I needed to be cleared. I did want more drugs because I wanted more that day and I didn’t – I didn’t have a car or anything so I thought, you know, why not take – why not take the risk if I’m not going to get into that much trouble. I can pay off my debts and not stressed about that, get more stuff off him that I’ll have for the week and, you know, get a – get a car that I don’t have. I didn’t have a car”.
· Q 228: “Yeah, I understood there was some risk. The risk that has happened now I didn’t think it would be to that extent but for – yeah, he – when I heard – he just told me, like, the main risk would be you might get raided and, you know, that’d be about it. You’ll get a slap on the wrist. Yeah. That’s pretty much all I know”.
· in return for agreeing to have the parcels sent to him at his home address, the accused received a car[76] and the clearance of a debt of about $1,500.
[76] Pg 145-146, Vic Roads records confirm an application to transfer the registration of vehicle “XTZ-593” in the name of Norman Cox to the accused was received by Vic Roads on or about 28 April 2011. As at 8 August 2011 this vehicle was last registered in the name of the accused.
· he expected three order for drugs (Q 234) and didn’t order the drugs and just gave his address to receive them (Q 236)
· he also assisted Norman in the importation of the drugs by transferring cash overseas in exchange for drugs. He recalls making two money transfers (of $2,000 and $990) for Norman and knew the payments “..would be for something illegal” He stated Norman told him the “only reason why he [Norman] couldn’t do the transfer was because he has charges of importation of commercial quantity of drugs and he would be likely said and seen straight away as his name comes up in Western Union” (Q 237-261).
Money transfers
Western Union[77] records confirm 3 cash transfers were made in the name of the accused to various addresses in Canada and the United Sates as follows:
[77] NGUYEN, 231-233.
·On 29 March 2011 – AU $990
·On 29 March 2011 – AU$990
·On 4 April 2011 – AU $2,000
Vehicle “XTX-593”
Records maintained by Vic Roads confirm an application to transfer the registration of vehicle “XTZ-593” in the name of Norman Cox to the accused was signed and dated on 1 April 2011. This application for transfer was received by Vic Roads on or about 28 April 2011[78].
[78] Pg 146.
A section 84 Roads Corporation Certificate confirms vehicle “XTZ-593” was as at 8 August 2011 last registered in the name of the accused[79].
[79] Pg 145.
Arrest and history of proceedings
The accused was arrested following the record of interview on 25 July 2011 and a filing hearing took place that day at the Magistrates’ Court at Melbourne. An unopposed application for bail was made and he was granted bail.
The accused has spent no days in custody in relation to these charges.
On 16 November 2011 at the committal mention hearing, the accused was committed to stand trial by way of straight hand-up brief. He entered a plea of guilty to the charges on the indictment and was bailed to appear in this Honorable Court for plea on 9 February 2012. It is conceded that the accused entered a plea of guilty at the earliest opportunity.
Penalty
The maximum penalty for an offence pursuant to s.307.3 of the Criminal Code is 10 years imprisonment and/or 2000 penalty units ($220,000).
At the time of this offending there was no minimum marketable or commercial quantity specified for methcathinone or its analogues. On 9 April 2011 Interim Regulations came into effect prescribing a minimum marketable quantity of methcathinone and 4-MMC of 2 grams net and minimum commercial quantity of 750 grams net. With the exception of 4-MMC, other analogues of methcathinone are not picked up by the Interim Regulations.
Other
The accused is 21 years old. He has no prior convictions.
Commonwealth Director of Public Prosecutions
23 January 2012
205
DPP v El Karhani (1990) 21 NSWLR 370
R v Berisha & Ors [1999] VSCA 112
R v Su & Ors [1997] 1 VR 1
R v Carey [1998] 4 VR 13
DPP v McInnes [2009] VSCA 144
R v Casey [2002] VSCA 117
R v Olbrich [1999] HCA 54
Adams v R [2008] 234 CLR 143
R v Pidoto & O’Dea (2006) 14 VR 269
Cameron v R (2002) 187 ALR 65
R v Pajic [2009] VSCA 53
R v Fraser [2004] VSCA 147
Raptis & Ors (1988) 36 A Crim R 362
Mills [1998] 4 VR 235
R vVerdins& Ors (2007) 16 VR 269
R v MacNeil-Brown [2008] VSCA 190
Hill v R [2010] HCA 45
Bell [1999] VSCA 223
Tran [2002] 4 VR 457
Coory [2011] VSCA 316
0
15
0