Director of Public Prosecutions v Poulos
[2018] VCC 590
•27 April 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-17-02183
Indictment No. H11279292
AP-16-0628
AP-16-0631
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER POULOS |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 April 2018 |
| DATE OF SENTENCE: | 27 April 2018 |
| CASE MAY BE CITED AS: | Director of Public Prosecutions v Poulos |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 590 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – traffick methylamphetamine – trafficking in a drug of dependence – commercial quantity – contravening Community Correction Order – failing an oral fluid test – drive whilst disqualified – failing to wear a seatbelt – use false document
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981, s71AA, s71AC; Crimes Act 1958, s83A(2); Road Safety Act 1986, s49(1H), s30(1); Road Safety Rules (Road Rules) 2009, s264(1)
Cases Cited:Director of Public Prosecutions v Maxwell [2013] VSCA 50; The Queen v Doran [2005] VSCA 271; R v Verdins & Ors (2007) 16 VR 269; The Director of Public Prosecutions v O’Neill [2015] VSCA 325
Sentence:AP-16-0628 – use false document – convicted and sentenced to one month’s imprisonment and an aggregate fine of $750.
AP-16-0631 and AP-16-0628 – contravening Community Correction Order – convicted and sentenced to one month’s imprisonment. On all other charges, convicted, and on each sentenced to an aggregate fine of $1,500.
Indictment H11279292, traffick methylamphetamine, convicted and sentenced to two months’ imprisonment; trafficking in a drug of dependence, convicted and sentenced to two years’ imprisonment.
Each of the sentences of imprisonment imposed arising out of the appeals and the trafficking of methylamphetamine to be served wholly concurrent with the sentence relevant to the trafficking of butanediol.
Total Effective Sentence of two years’ imprisonment with non-parole period of 12 months. License to drive a motor vehicle cancelled and disqualified from obtaining such a license for six months.
Section 6AAA declaration – sentence of three-and-a-half years’ imprisonment, with a non-parole period of two years and three months and the same fines as already imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T Hoare | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr L Gwynn | Valos Black |
HIS HONOUR:
1Christopher Poulos, I will firstly deal with the two appeals from sentences imposed upon you in the Magistrates’ Court.
2The first appeal is AP-16-0628. On 29 August 2015, two police officers observed you driving a car in St Albans. Their attention was attracted to the fact that you were not wearing a seatbelt. They pulled you over. The evidence is contained in the statement of Sergeant Emmanouel.
3Arising out of those two police officers intercepting you, you were subsequently charged with:
(a)failing an oral fluid test contrary to s49(1H) of the Road Safety Act 1986, carrying a penalty for a first offence of 12 penalty units;
(b)drive whilst disqualified contrary to s30(1) of the Road Safety Act 1986, carrying a penalty for a first offence of 30 penalty units or imprisonment of four months;
(c)failing to wear a seatbelt contrary to Rule 264(1) of the Road Safety Rules (Road Rules) 2009, carrying a penalty of ten penalty units.
4Also arising out of those two police officers intercepting you, you were charged that on 3 March 2016, you used a false document in relation to an appearance before a magistrate contrary to s83A(2) of the Crimes Act 1958 in support of a plea of mitigation of penalty, carrying a maximum penalty of ten years’ imprisonment.
5You tendered a report of Dr De Souza dated 18 February 2016, the contents of which were false. Enquiries revealed that the relevant medical practitioner had not worked at that relevant clinic on 18 February 2016.
6The second appeal is AP-16-0631. On 9 January 2015, two police officers observed you riding a black Moped motorcycle in St Albans. Their attention was attracted to the manner in which you were riding the motorcycle. The evidence is contained in the statement of Constable Townsend.
7Arising out of those two police officers intercepting you, you were subsequently charged with:
(a)Possession of cannabis contrary to s73(1A) of the Drugs, Poisons and Controlled Substances Act 1981, carrying a maximum penalty of five penalty units;
(b)Possession of methylamphetamine contrary to s73(1B) of the Drugs, Poisons and Controlled Substances Act 1981 carrying a maximum penalty of 30 penalty units or one year imprisonment;
(c)Dealing with property suspected of being the proceeds of crime, being $312.25 contrary to s195 of the Crimes Act 1958, carrying a maximum penalty of two years’ imprisonment;
(d)Failure to stop a vehicle on police request contrary to s59(1A) of the Road Safety Act 1986, carrying a maximum penalty of five penalty units;
(e)Careless driving contrary to s65(1) of the Road Safety Act 1986, carrying a maximum penalty for a first offence of 12 penalty units.
(f)Use an unregistered motor vehicle on a highway contrary to s7(1A) of the Road Safety Act 1986, carrying a maximum penalty for a first offence of 25 penalty units;
(g)Unlicensed driving contrary to s18(1A) of the Road Safety Act 1986, carrying a maximum penalty of 25 units or imprisonment for three months;
(h)And lastly, driving a vehicle while exceeding prescribed concentration of drugs contrary to s49bb of the Road Safety Act 1986, carrying a maximum penalty for a first offence of 12 penalty units.
8You were also charged with contravening a Community Correction Order on which you were released on 4 August 2015, contrary to s83AD(1) of the Sentencing Act 1991, carrying a maximum penalty of three months’ imprisonment.
9The two appeals were heard by me on 19 September 2018. I was persuaded to release you on a Community Correction Order for two years on specific conditions, one of which was judicial monitoring.
10I undertook an episode of judicial monitoring on 6 February 2017. By that stage, you had ten unacceptable absences. I gave you a very stern warning that if you did not rectify those unacceptable absences and comply strictly with the Community Correction Order, that you faced the real probability of the Community Correction Order being cancelled, and then you being resentenced, probably to a term of imprisonment.
11You have been charged with failing to comply with the conditions of a Community Correction Order. The reports which support the charge dated 30 January 2018 and 6 April 2018 demonstrate a very serious failure on your part to perform the unpaid community work, attend an occasion of treatment and rehabilitation, and failing to attend meetings relevant to your supervision. Additionally, you have reoffended. I will deal with you for that reoffending when I come to deal with the charges on which you have been indicted.
12You did not seriously oppose the cancellation of the Community Correction Order, nor could you, given your serious failure to meet the simple demands of the Order. Therefore, pursuant to s83AS(1C) of the Sentencing Act 1991, I will cancel the order and proceed to resentence you.
13I note that ss(2) provides that I am obliged to take into account the extent to which you have complied with the Community Correction Order. I propose to do just that.
14It was a condition of the Community Correction Order that you perform 150 hours of unpaid community work. You have completed 56.4 hours, leaving 93.2 hours outstanding. You did attend six sessions with a clinician relevant to your drug use and mental state, but overall you incurred 17 unacceptable absences.
15I kept notes of the occasion when you appeared before me. I informed you that a reason why I preferred to extend the Community Correction Order on which you were placed by the magistrate, rather than order that you be imprisoned, was because you had produced urine screenings which demonstrated an absence of any illicit drugs, and I was given reason to believe that you were on the road to rehabilitating yourself.
16Let me put this in the most simple terms. You were given the chance that you asked for. You completely ignored your obligations to remain drug free and comply with the conditions of the Community Correction Order, and, most importantly, that you not reoffend. Your resort back into the use of drugs is an explanation, perhaps, why you failed to meet the obligation of the Community Correction Order, but it is far from an excuse for that failure.
17I will now summarise your prior criminal record. You appeared before courts charged with offences relating to possession of illicit drugs and driving offences.
18On each occasion which you appeared before a court, you were dealt with relatively leniently, which provides me with some understanding of the gravity of that offending conduct. What is clear from your prior criminal history, and indeed all of the charges I am dealing with, is that you have a long history of the use of illicit drugs.
19Although these are summary offences ordinarily not requiring the same attention to detail as does sentencing for indictable offences, I have set out your offending conduct and the individual sentences in some detail, because I feel obligated to make a statement of the sentencing purposes which I have considered are relevant.
20It is clear that you have a past history of use of illicit drugs and some driving offences. I think the sentencing process thus far must incorporate an element of specific deterrence, a strong emphasis on general deterrence, and, to a lesser extent, denunciation and protection of the community.
21It will come as no surprise to you that an association of illicit drugs combined with the use of a motor vehicle is a recipe for disaster. You put other road users at risk. It is quite clear to me that you could not have cared less.
22I have moderated the sentencing process to pay regard to the fact that you have partially completed the Community Correction Order. Therefore, I think a combination of fines and short terms of imprisonment will reflect that level of moderation.
23I should add that I have taken into account the matters raised on the plea made by your counsel in sentencing you relevant to the two appeals, but my preference is to deal with the substance of the plea material when I come to deal with the indictable offences, which I will do now.
The Indictable Offences
24I will now deal with the indictable offences.
25You have been charged with one count of trafficking methylamphetamine, which carries a maximum penalty of 15 years’ imprisonment. You have also been charged with trafficking a commercial quantity of 1,4-butanediol of 2 kilograms, carrying a maximum penalty of 25 years’ imprisonment.
26You agree that the short prosecution opening on plea is an accurate summary of your offending conduct. I propose to summarise parts of the opening for the purpose of ensuring that my sentencing remarks are properly understood.
27Butanediol is an industrial solvent. It metabolises in the liver to form GHB. After ingestion, it reaches its peak effectiveness after 30 to 60 minutes.
28Police attended a property in Hillcrest, South Australia, at about 6.32pm on Saturday, 28 May 2016. Three persons who were present at that address were arrested.
29The police located 12 one-litre plastic bottles in the rear of a vehicle. It was identified as butanediol. Analysis of the bottles yielded DNA material which was matched to you.
30On the night of Monday, 24 April 2017, police conducted observations of premises at Keilor Downs relevant to an investigation into the trafficking of drugs of dependence. A vehicle was intercepted and a man named Tahir was arrested for trafficking and possessing drugs of dependence.
31Subsequently, police attended Tahir’s address, where you were observed to be sitting in the passenger seat of a black Holden utility. You had a black shoulder bag over your shoulder under your clothing.
32Police searched you and found four clear zip-lock bags containing a clear crystal substance analysed as methylamphetamine. It weighed 2.6 grams. That relates to Count 1 on the Indictment. You were also found in possession of $523.50.
33Police examined your mobile phone and that of Tahir, and in the course of doing so, located text messages which suggested that you were engaged in drug trafficking.
34When interviewed, you admitted to exchanging drugs of dependence for stolen laptops, cash and other items of value. You said you had a $500 a day drug habit. You admitted that the money found in your possession came from drug deals.
35Furthermore, you admitted that you helped a man named “Sam” deal with the bottles found at the property at Hillcrest. You admitted that you helped decant liquid from drums into bottles, and then helped load them into Sam’s car. A debt of $3,000 which you owed Sam was cleared by him as a result of you helping him, and you were given two bottles of butanediol valued at $700 a litre. This relates to Count 2 on the Indictment.
36The prosecution submitted that I should accept that the trafficking in methylamphetamine was at the very lower end of the scale of trafficking and akin to street-level trafficking. Your counsel submitted that the weight of 2.6 grams is unlikely to be the weight of what you had in your possession. He submitted that when the plastic zip-lock bag is extracted from the weight measurement, that the weight was more likely to be 1.5 grams. I accept the concession made by the prosecution that the trafficking of the methylamphetamine is at the very low level of trafficking, and I accept that the net weight is less than 2.6 grams.
37However, your involvement in trafficking butanediol puts you in an entirely different and far more serious category.
38Let me now say something about the objective seriousness of drug trafficking. In general terms, it has been said time and time again that illicit drugs are a scourge on our community. You must have known that, particularly because of your history of the manner in which drugs have had a serious adverse impact on you, yet you were quite prepared to play your part in the trafficking of this illicit drug, and inevitably to expose others in the community to the ravages of it.
39More specifically, butanediol is without any doubt a dangerous drug to the end user. Balanced against that are the additional statements made by your counsel by reference to what the Court of Appeal said in Director of Public Prosecutions v Maxwell [2013] VSCA 50. It is relevant for me to bear in mind that butanediol is commercially available and relatively cheap when compared with illicit drugs like heroin. Consequently, the financial return through trafficking is significantly less. The Court of Appeal considered that the enormous reward differential between the trafficking of this drug when compared with others such as heroin, must reduce your culpability because the financial reward to you was likely to be relatively small.
Your Plea
The case against you
40Additionally, your counsel submitted that the prosecution case against you relevant to the butanediol is weak. It was only as a result of your admissions that you were charged. The prosecutor took issue with that submission. He submitted that the case was circumstantial, but nonetheless one which had a prospect of securing a jury verdict of guilty; however, he conceded that your admissions were central to you being indicted on this charge.
A relevant discount
41Your counsel submitted that you must be given a demonstrable discount on the sentence I must impose on you, in accordance with what the Court of Appeal said in The Queen v Doran [2005] VSCA 271. I accept that submission.
42I accept that your admissions were voluntary and were made without pressure being placed on you. They provided the prosecution with all that it required to have you convicted. What this means is that your admissions reduce the need for the sentence to personally deter you. They increase your prospects of rehabilitation and demonstrate genuine remorse on your part.
Your background circumstances
43Your counsel emphasised aspects of your background history. That history is to be found in the reports of Ms Ferrari, psychologist, dated 16 April 2018; the report of Mr Newton, psychologist, dated 13 September 2016, and the report of Dr Gooden, neuropsychologist, dated 12 April 2017. The report of Ms Ferrari was commissioned specifically for your appearance before me on the charges on indictment. The report of Mr Newton was commissioned specifically for your appearance before me on the hearing of the appeals. The report of Dr Gooden was prepared as part of your neuropsychological assessment, relevant to conditions placed on you under the Community Correction Order.
44The history recorded in those reports point to you having a modest and not very fruitful education. You completed Year 10. Unfortunately, you had already developed an association with illicit drugs in your teens. Your mother and father, you say, were given to the use of illicit drugs, and your mother, you say, had an unfortunate association with an excessive intake of alcohol. There was conflict between your mother and father to which you were exposed in your teens. You also struggled with being significantly overweight, and you developed a level of self-consciousness about your appearance. You are 30 years of age, and otherwise your employment history as far as I can see is very poor.
45But despite the domestic issues which troubled your teenage years, you are supported in Court by your brother, his female partner, and your father. It would appear, as far as I can see, that your home life was reasonable and has been for some time.
The left knee problem
46Your counsel tendered a number of documents which point to you having a troubling left knee injury. The first is an MRI scan taken on 30 August 2017, which discloses that there is detectable pathology in your left knee, which may be the cause of your knee problems. The second is a referral to the Sunshine Hospital of Dr Azer, general practitioner, for opinion and management of the left knee problem. The third is a short report of Western Health dated 2 September 2017, which interpreted the MRI scan as demonstrating a tear of articular cartilage over your patella. You have otherwise been referred to a fracture clinic, presumably at the hospital.
47Your counsel submitted that upon your inevitable imprisonment, that the left knee problem will pose a problem for you in protecting yourself from other prisoners who may physically attack you. The medical material does not go so far as to suggest that you are physically incapacitated to the extent that you have impaired mobility, so I am reluctant to accept the submission made in that regard. You could have obtained more from your general practitioner to explain the nature and extent of any impairment of the function of your left knee, but you did not take that step. As it is, I am left with the medical material which I am expected to interpret. I am not prepared to interpret it any further than the extent to which I have.
Your psychiatric state
48Dr Gooden administered a number of well-known tests applied by neuropsychologists. The conclusions he reached were that your cognitive profile was variable, but demonstrated a number of areas of weakness, and in particular with vocabulary, word reading, phonological skills, which he considered may have been related to your lack of interest in education and your lower academic achievements. He noted that your deficits may have impacted upon your self-esteem. He noted that you performed worse under pressure. He noted you appeared to have difficulty grasping new concepts. Most importantly, he noted that your daily substance abuse from early adolescence has had an impact on your cognitive abilities, and you demonstrated performance anxiety and low confidence.
49Dr Gooden recommended that you have psychological treatment, which would have benefited you, but you failed to exploit the advantage that that would have provided you, because you did not pursue it under the conditions imposed upon you under the Community Correction Order.
50Mr Newton noted the severity of your pre-existing drug problem. At the time he assessed you, you had made attempts to address your drug problem; however, he considered that you were at risk of relapse. He recommended that you undergo treatment, which you have not pursued.
51Ms Ferrari considered that you have demonstrated significant decline in your mental state and functioning at the time you offended, due to relapse into drug use. She noted that your relapse was in the setting of psychosocial stressors and reconnecting with former antisocial acquaintances. The recommendations which she made bear a similarity to those made by Dr Newton. Essentially, she proposed that if you took positive steps relevant to your drug use and pursuit of such things as education, treatment and employment, that you would significantly benefit.
Verdins
52Your counsel submitted that you should be given the benefit of what the Court of Appeal said in The Queen v Verdins & Ors (2007) 16 VR 269. He particularly relied upon the relevance of categories 1, 3, 5 and 6. I disagree.
53The starting point is to identify the psychiatric conditions said to constitute a mental impairment, and then for me to direct my attention to how that mental impairment is likely to have affected your mental functioning at the time of your offending or in the lead-up to your offending. This was referred to in a subsequent decision of The Director of Public Prosecutions v O’Neill [2015] VSCA 325, in which the Court of Appeal emphasised that there must be a causal connection between the mental impairment and your offending conduct. It used these expression: “a realistic connection”, or, “having caused or contributed”, or being “causally linked” to the offending conduct if there is reliance to be had on categories 1, 2, 3 and 4.
54I am not satisfied that you suffer from a mental impairment of the kind considered in the authorities which permits reliance on any of the six categories, and, most importantly, I do not consider the expert evidence upon which you rely demonstrates that if you had a mental impairment at the time of your offending, or at the time of sentencing, that it supports the relevant causal link.
55Similarly, the same evidence does not permit reliance on categories 5 and 6. It is inevitable that someone who has never been imprisoned will find the serving of a term of imprisonment for the first time onerous, but not onerous in the sense meant in categories 5 and 6.
Conclusion
56I will now turn to the particular sentencing purposes which I consider are relevant to you and your offending conduct, relevant to the charges on which you have been indicted. Doran makes it clear that your admissions reduce the need for the sentence to personally deter you; however, the sentence must contain an expression of general deterrence, denunciation and protection of the community.
57I have balanced against those sentencing purposes each of the matters raised by your counsel in a very lengthy but very well presented plea. I accept that you admitted your guilt at the very earliest possible time. I accept that the admissions contain evidence of strong remorse. I accept that you are in the clutches of drug addiction which, if that addiction is broken and you pursue the treatment which you have been advised to undertake, that your prospects of rehabilitation are good.
58I have paid due regard to the plea made on your behalf by your counsel, and to the factors which I consider are relevant in sentencing you. In particular, I have paid regard to the principle of totality in standing back from your total offending conduct relevant to the two appeals, and the charges on the Indictment, in fixing fines and sentences of imprisonment which are proportionate to the gravity of your total offending conduct.
59I would now ask you to stand, please.
60I will now deal with the charges the subject of appeal AP-16-0628.
(a)Using a false document, you are convicted and sentenced to one (1) month’s imprisonment.
(b)On all of the other charges, you are convicted and sentenced to an aggregate fine of $750.
61I will now deal with the charges subject to appeal AP-16-0631.
(a)On the charge of contravening the Community Correction Order, which also applies to appeal AP-16-0628, you are convicted and sentenced to one (1) month’s imprisonment.
(b)On all of the other charges, you are convicted, and on each you are sentenced to an aggregate fine of $1,500.
62I will now deal with the charges on the Indictment.
(a)On the charge of trafficking methylamphetamine, you are convicted and sentenced to two (2) months’ imprisonment.
(b)On the charge of trafficking butanediol, you are convicted and sentenced to two (2) years’ imprisonment.
63Each of the sentences of imprisonment I have imposed on you arising out of the appeals and the trafficking of methylamphetamine are made wholly concurrent with the sentence relevant to the trafficking of butanediol.
64You are therefore sentenced to two (2) years’ imprisonment. I will fix a minimum term before you will become eligible for parole of twelve (12) months. I have fixed a longer parole period for the purpose of ensuring that you are given the benefit of an extended period of supervision, in the hope that it will aid you in stabilising your condition and your attitude to remaining on medication.
65Additionally, any license you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining such a license for six months.
66If it had not been for your pleas of guilty relevant to all of these charges, then I would have sentenced you to three-and-a-half years’ imprisonment, with a minimum of two years and three months. I would have imposed the same fines as I have already imposed for those offences which do not carry a term of imprisonment.
67You can now be seated.
68I will make each of the orders for disposal of the methylamphetamine and your phone, and I will make the order for $513.50.
69Mr Hoare, firstly, anything you want to raise?
70MR HOARE: Does Your Honour formally set aside the orders? You perhaps did it on the plea last time, formally set aside the orders of the Magistrates’ Court on the appeal?
71HIS HONOUR: If I need to, then I will do that now.
72MR HOARE: In my respectful submission you do under the Criminal Procedure Act, so that’s the only matter that I would raise, Your Honour.
73HIS HONOUR: All right, well that is an oversight on my part. I am grateful to you raising that with me. I will now formally and retrospectively set aside the sentences of the Magistrates’ Court in dealing with the appeals.
74MR HOARE: Thank you, Your Honour. Just by way of when Your Honour revises the sentencing remarks, the date that you dealt with Mr Poulos on appeal was September 2016, not April 2016. I think the 19th.
75MR GWYNN: Yes, I agree, Your Honour.
76HIS HONOUR: Yes, well I suspected when I got to that point, but I got lost, and I do apologise for that.
77MR HOARE: No, not at all.
78HIS HONOUR: But thank you for picking up the second error. Mr Gwynn?
79MR GWYNN: Your Honour, can I just seek a stay in relation to the fines, and just a stay of three months, and I’ll speak to Mr Poulos about his options then after that time.
80HIS HONOUR: Yes, well I will grant a stay of three months.
81MR GWYNN: As Your Honour pleases.
82HIS HONOUR: I have executed the relevant orders, and I will now have my associate hand them to you. You can now remove Mr Poulos, thank you. Unless there is anything else, I will now adjourn the court until tomorrow.
83MR HOARE: Monday.
84HIS HONOUR: I will not be doing that until tomorrow. You threw me off, Mr Hoare, you see.
85MR GWYNN: He’s the gun on Friday afternoon, Your Honour.
86HIS HONOUR: Well, let us all have a good weekend.
87MR GWYNN: Yes indeed. Thank you, sir.
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