Director of Public Prosecutions v Raptis
[2018] VCC 1745
•25 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR 17-00511
Indictment No: CI60922.2
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CONSTANDINOS RAPTIS |
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JUDGE: | HER HONOUR JUDGE CONDON | |
WHERE HELD: | Melbourne | |
DATES OF PLEA HEARING: | 1 June 2018 and 21 September 2018 | |
DATE OF SENTENCE: | 25 October 2018 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Raptis | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1745 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – trafficking in a commercial quantity of 1-4
butanediol
Cases Cited: R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269; 169 A
Crim R 581. DPP v O’Neill [2015] VSCA 325; 47 VR 395; 256 A Crim R
469. DPP (Cth) v Maxwell [2013] VSCA 50
Sentence: Total effective sentence of 4 years 9 months’ imprisonment with a non-
parole period of 3 years
6AAA declaration: 7 years’ imprisonment with a non-parole period of 5
years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Perry (1 June 2018) Mr J Goetz (21 September 2018 and 25 October 2018) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms D Caruso | Zouki Lawyers |
HER HONOUR:
1 Constandinos Raptis, you have pleaded guilty before me to one charge of trafficking in a commercial quantity of a drug of dependence, one charge of possession of a drug of dependence and one charge of negligently dealing with proceeds of crime.
2 Exhibit A on the plea was the Summary of Prosecution Opening. I incorporate that document into my Reasons for Sentence. However, I will briefly summarise the activity that led to these charges.
3 On Tuesday 19 April 2016, Drug Task Force detectives executed search warrants in the north-western suburbs of Melbourne. They attended at the address of your co-accused in this matter, Akin Arici (“Arici”), who was residing at an address in Fawkner. There, various drugs were located. Insofar as the charge that you are both facing, being charge 1, is concerned a quantity of 1,4-butanediol was located.
4 Also found was a CCTV hard drive which was seized and subsequently analysed. As a consequence of analysis of the hard drive, you were identified as attending the premises at Fawkner on several occasions between 5 March and 18 April 2016. In particular, on the 18th April 2016, you were seen to drive a Mercedes Benz sedan into the driveway of the property.
5 You were then seen to approach your co-accused, Mr Arici, and to open the boot of your car, in which three cardboard boxes were visible. You then took two of those from the boot of the car and Mr Arici took the remaining box and they were placed in the garage. Shortly afterwards, you left the premises carrying a black travel bag (this activity relates to charge 1 on the Indictment).
6 Some months later, on 13 September 2016, Drug Task Force detectives executed a search warrant at an address in Keilor Road, Essendon North, where you were living. There, police located 14 vials of steroids and nine vials of HGH and ten boxes of HGH were located (this relates to charge 2 on the Plea Indictment); $105,705 was found in cash; gold and silver Rolex watches, valued in total at $58,000 (this relates to charge 3 on the Indictment). Also found was an electronic money counter; and multiple mobile phones and various documents, including receipts for recent purchases, totalling $20,265. These items are relied on by the prosecution to show that present at your house were the accoutrements of drug trafficking.
7 You were interviewed on the same day at the Melbourne North Police Station. Whilst you answered selectively, you chose to provide an account for the possession of the money, jewellery and drugs found in your possession.
8 You agreed that the HGH had been located in the fridge and stated that one of the watches, a Panieri, was yours, and that you were holding the others (Rolexes) for an unnamed individual overseas.
9 You claimed to have saved the cash found from gambling and estimated the amount to be about $90,000. In relation to the activity at the co-accused Arici’s premises, you stated that any attendance there was for dropping off cooking oil and that you had no idea as to the content of the parcels delivered to his home on 18 April 2016.
10 On 7 February 2018, a plea offer was made on your behalf. In the circumstances, I find that it is a plea of guilty designed to facilitate the administration of justice and one consistent with remorse.
11 In the course of the plea in mitigation, attention was addressed to the question of parity with your co-accused, Mr Arici, in respect of charge 1 on the Indictment. Ultimately, the Crown submission was that while your roles were different, a measure of parity was warranted between you and your co-accused in relation, solely, to charge 1. As I understand the Crown’s position, given what was revealed by the CCTV footage on 18 April, I am at liberty to sentence you on the basis that your role is akin to that of a courier. Your defence counsel made the same submission.
12 Contrary to your assertions in the record of interview, it is clear by your plea of guilty that you accept that you were involved in trafficking in 1,4-butanediol. Although trite to state, given the amount was analysed to be 74.5kg, it is well in excess of the commercial threshold.
13 I heard evidence on the plea from registered psychologist, Dr Jacques Duff. Initially, your counsel sought to make a Verdins submission based on the evidence of Dr Duff. However, after a discussion between myself and your counsel, which involved alerting her to the Court of Appeal decision in DPP v O’Neill[1], your counsel eschewed any reliance on any of the limbs of Verdins. However, I take into account the matters raised in Dr Duff’s evidence and in his report, tendered as exhibit 2, as providing relevant personal background material.
[1] [2015] VSCA 325; 47 VR 395; 256 A Crim R 469
14
At the time of these offences, you were 32 and 33 years of age. You are now 35. You were remanded on 13 September 2016 and released on bail on
25 November of the same year. While you do have some history before the courts, this is the first term of imprisonment that you will serve. Previously, the dispositions imposed upon you have involved suspended sentences of imprisonment or community-based orders. While a large portion of your criminal history pertained to driving matters, more recently in September of 2016 you were given a suspended gaol term for obtaining a financial advantage by deception and received a fine for possession of a drug of dependence.
15 Realistically, your counsel conceded that this offending was sufficiently grave to warrant a sentence of imprisonment.
16 She submitted to me that you have good prospects for rehabilitation and relied on the following factors in support of that contention:
(i) your strong family support network;
(ii) your insight into your offending;
(iii)the fact that whilst on bail there has been no further offending; and
(iv) your capacity for work.
17 Insofar as your prospects of rehabilitation are concerned, I received a letter on the plea from Arthur Tsonis. You have known him since January 2017 and he has been a mentor to you. He stated that in the 15 months he has known you that you have engaged well with your family and friends. He says that you have attempted to work again, be independent, and take responsibility for your own actions and your own life. In that vein, it was clear to him that you acknowledged the inevitability of having to serve a substantial gaol term for your actions here.
18 Exhibit 4 on the plea were certificates relating to courses that you have undertaken whilst you have been on remand subsequent to the plea in mitigation. The various courses are a drug and alcohol program, a managing loss program, and a managing sleep program. It is to your credit that you have sought to maximise the opportunities available to you while in custody.
19 I now turn to your personal history. You were born in Moonee Ponds in 1983. Your mother, Vicky, was a single working mother, who was seventeen years of age at the time she had you. You told Dr Duff that your childhood was lonely, and that you felt neglected as you had no father and your mother worked very hard to support you.
20 In May 1997, when you were only 14 years of age, you were on your bike and hit by a car and suffered a head injury. According to Dr Duff, you lost consciousness and you were taken to John Fawkner Private Hospital in Brunswick. No records of the hospital admission were available, but a letter was provided by the hospital administration, which indicated that you were admitted to John Fawkner on 6 May 1997 for a concussion and discharged home the next day.
21 According to Dr Duff’s report, this accident had a profound impact upon you. You left school not long after, as you were unable to cope with the pressures of schooling, therefore you have a very limited education history. At age 18, you started work as a solid renderer, an occupation which you continued for four years. In 2004, you started a business cleaning commercial buildings, however that ceased to operate in 2012. In the period between 2012 and the date of offending, you worked in various jobs for plastering, plumbing and fencing as a contracted labourer, and doing general maintenance.
22 Whilst on bail, you re-established your cleaning business and lived with your mother before moving to a rental property in Lygon St, Carlton.
23 You told Dr Duff that you have had four serious relationships in your life, the first being between the ages of 19 and 26 and the last between 2013 and 2017. You have never been married and you have no children.
24 As already observed, you do, however, have a very wide support network, and this was evident by the amount of persons who were present in court on each occasion the plea was listed before me. In particular, it is clear to me that upon your release from custody you will have the benefit of the support of your mother, who has steadfastly stood by you. Given this, and the character references put before me, I am of the view that your prospects for rehabilitation remain good.
25 The basic purposes for which a court may impose a sentence are punishment, general deterrence, specific deterrence, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, and your personal circumstances.
26 In her submission to me, your counsel submitted that, in your case, I should impose a shorter than usual non-parole period to reflect the following considerations:
(i) your plea of guilty;
(ii)your efforts post-charge and on release of bail to make meaningful changes to your lifestyle; and
(iii) your excellent family support and your good prospects for rehabilitation.
27 As already observed this is trafficking well in excess of the threshold for the commercial quantity of this particular drug. To put it more specifically, 37.25 times the threshold or 72.5kg in excess of the threshold. As a consequence, this is serious offending, involving a drug that wreaks havoc in the community. In the circumstances, I am bound to impose a sentence that gives full expression to the sentencing principles of general deterrence, denunciation and punishment.
28
Your counsel initially made the submission that despite the absence of any evidence, the low profitability of 1,4-butanediol was relevant to my assessment of the objective gravity of the offending.[2] Subsequent to that submission, the prosecution tendered on the plea of your co-accused, Mr Arici, as part of
exhibit A, a statement of Paul Funnell. At paragraph 24 of that statement, estimations are given as to the potential monetary value of 74.5kg of 1,4-butanediol.
[2] DPP (Cth) v Maxwell [2013] VSCA 50
29 I bear in mind that this evidence does not impact upon the prosecution's concession that you are to be sentenced solely as a courier and it is unable to say what would have become of the 1,4-butanediol, had it remained in the possession of Mr Arici.
30 In sentencing you, I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and re-integrated into society.
31 Please stand, Mr Raptis.
32 In relation to charge 1, being a charge of trafficking in a commercial quantity of a drug of dependence, I sentence you to a period of four (4) years’ imprisonment.
33 In relation to charge 2, being a charge of possession of a drug of dependence I sentence you to a period of three (3) months’ imprisonment.
34 In relation to charge 3, being a charge of negligently dealing with proceeds of crime, I sentence you to a period of two (2) years’ imprisonment.
35 Given the nexus between charges 2 and 3, I have determined that the sentences imposed on these charges should be served wholly concurrently. I also bear in mind the application of the totality principle and order that nine (9) months of the sentence imposed on charge 3 be served cumulatively upon the sentence imposed on charge 1.
36 This makes for a total effective sentence of four (4) years, nine (9) months’ imprisonment.
37 I order a period of three (3) years before you become eligible for parole.
38 Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have spent 220 days (not including today) in custody and I order that such declaration be made in the record of the court.
39 Pursuant to s 6AAA of the Sentencing Act, I declare that were it not for your plea of guilty, I would have imposed a term of imprisonment of seven (7) years, with a non-parole period of five (5) years.
40
The application for a forensic sample was unopposed and is granted. I make the disposal/forfeiture orders in the terms sought. You may be seated,
Mr Raptis.
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