Director of Public Prosecutions v Sioulas
[2022] VCC 2372
•14 October 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-18-01267
CR-22-00550
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN SIOULAS |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 October 2022 | |
DATE OF SENTENCE: | 14 October 2022 | |
CASE MAY BE CITED AS: | DPP v Sioulas | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2372 | |
REASONS FOR SENTENCE
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Subject: Trafficking in a drug of dependence – possession of a drug of
dependence – resist emergency worker on duty – unlicensed
driving – deal property suspected proceeds of crime –
contravention of CCO
Catchwords: Guilty plea - element of entrapment – COVID-related hardship of
prison – reasonable prospects of rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic); Road Safety Act 1986 (Vic)
Cases Cited:
Sentence: Total effective sentence of 3 years’ imprisonment with a 1 year and
10 months non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms E. Maguire | Office of Public Prosecutions |
| For the Accused | Mr C. Pearson |
HIS HONOUR:
1Steven Sioulas, you have pleaded guilty to:
(a) two charges of trafficking in a drug of dependence;
(b) one charge of possession of a drug of dependence; and
(c) one charge of resisting an emergency worker.
2You have also pleaded guilty to related summary offences of:
(a) unlicenced driving; and
(b) dealing with money suspected of being proceeds of crime.
3Your offending occurred in two episodes. Firstly, between 29 August 2019 and
4 September 2019 and subsequently, between 14 May 2021 and 19 October 2021.4The circumstances are summarised in the prosecution opening.[1] They are agreed facts.
[1] Exhibit A: Summary of Prosecution Opening for Plea dated 19 July 2022.
Charge 1
5Charge 1 (Trafficking in a drug of dependence) is a rolled-up count of two incidents. On 29 August 2019, you sold an uncover police officer an 8 ball or 3.5 grams of methylamphetamine for $500. It was 82 per cent pure. You told him you could supply cocaine for $800 an ounce and MDMA at $11-$13 for a pill in orders between 50-100 (first incident).
6On 4 September 2019, you sold the same police officer a gram of cocaine for $300. It was 70 per cent pure (second incident).
Charge 2
7Charge 2 (Trafficking in a drug of dependence) is a rolled-up count of eight incidents of trafficking. On 14 May 2021, you sold another uncover police officer an 8 ball or 3.5 grams of methamphetamine for $700. It was 87 per cent pure (first incident).
8On 20 May 2021, you sold the same police officer another 3.5 grams of methylamphetamine for $700. It was 86 per cent pure (second incident).
9On 25 May 2021, you sold the same police officer 28 grams, or an ounce, of methylamphetamine for $4200. It was 89 per cent pure (third incident).
10On 13 June 2021, you sold the same police officer 13.9 grams, or half an ounce, of methylamphetamine for $4600. It was 83 per cent pure (fourth incident).
11Between 18 June 2021 and 2 July 2021, in an exchange of text messages, you offered the same police officer 28 grams, or an ounce, of methylamphetamine for prices ranging between $6600 and $7700. The police officer said he would get back to you but did not. There was no sale but the offer to sell is an incident of trafficking (fifth incident).
12Between 13 July 2021 and 15 July 2021, you agreed to sell the same police officer 56 grams, or two ounces, of methylamphetamine. You quoted a price of
$8000-$9000. There was no sale because you could not get the drugs. Nevertheless, as an offer to sell, it was an incident of trafficking (sixth incident).13On 11 October 2021, you sold the same police officer 28 grams, or an ounce, of methylamphetamine for $9000. It was 77 per cent pure (seventh incident).
14On 18 October 2021, the police officer asked you for three bags, or ounces, of methylamphetamine. You told him the price would be about $9000 per bag. You arranged to meet him the next day. When you did, police were waiting (eight incident).
15You resisted when police tried to arrest you but were quickly restrained (Charge 4 – Resist emergency worker on duty).
16You did not have the three bags of methylamphetamine.
17You did have $2030.95 in your wallet (Summary Charge 16 – Deal with property suspected of being proceeds of crime).
18In your car you had three clip-sealed bags containing 18.1 grams, 27.6 grams and 0.8 grams of methylamphetamine and two packets of diazepam (Charge 3 – Possession of a drug of dependence).
19At your home, police found $400 in cash in the jacket pocket and your possession of that cash forms part of the summary charge of dealing with property suspected of being proceeds of crime. And in your closet, they found a bag containing
11.3 grams of morphine or heroin (Charge 3 – Possession of a drug of dependence).20The weights of drugs you sold and offered for sale and the weights of drugs you possessed is set out in the Prosecution Schedule.[2]
[2] Exhibit C: Amended Schedule (Drugs and Weights).
21Your driver's licence expired on 4 November 2016. Police saw you driving unlicenced on 30 April, 14 May, 2 June, 11 June, 17 June, 13 July, and
19 October 2021. This driving constitutes the offending in the summary charge of unlicenced driving.22When police interviewed you, you told them your problem with drug addiction. You said you were using three to four grams of methylamphetamine daily. You said you sold drugs to friends to cover your habit. You said you had given the police officer drugs because you thought it was one of the boys. Your memory failed you in relation to answering some questions and in relation to others you exercised your right to remain silent. You were charged with commercial quantity drug trafficking and remanded in custody.
23On 28 March 2022, the Office of Public Prosecutions proposed a resolution of the proceedings on the basis that the charges on the indictment. Shortly thereafter, you indicated your intention to plead guilty.
24You have admitted a criminal record. Your history of drug offending commenced on 4 April 2016 when you were sentenced to 20 days imprisonment with an
18-month Community Correction Order for trafficking weapons and proceeds of crime offences. On 19 April 2017, you were placed on a 12-month
Community Correction Order for drug use and driving offences. On
17 November 2017, you were sentenced to four months' imprisonment for drug possession and use, driving offences and breaching the earlier CCO. On
18 September 2019, you were sentenced to 14 days imprisonment for possessing drugs and a prohibited weapon and, again, for breaching a CCO.25On 6 February 2020, in this court I sentenced you to nine months' imprisonment and a two-year Community Correction Order, largely, for two episodes of drug trafficking between July-September 2017 and on 9 and 10 September 2019. When you offended in 2017, you were on bail for drug charges. When you offended in 2019, you were on bail for other offences and also subject to a
Community Correction Order and when you offended in 2021, you were subject to the Community Correction Order I made which commenced on 8 June 2020 after you had served your prison term. You have admitted your 2021 offending breached the Community Correction Order.26Your personal circumstances are set out in the report of Carla Lechner, clinical psychologist, who assessed you on 27 July 2022. You were born in October 1967. You are now 55 years old. You were born in Australia, the elder of two sons. You grew up in Melbourne and attended local schools. You reported a happy and stable upbringing. You had a close relationship with both your parents.
27After you completed year 12, you went to Swinburne University where you completed a computer programming course. You then worked in various computer programming positions until you established your own business around 2000.
28You married your wife in 1997. You have a daughter who is now 18 years old. You said, with success in business, you started using cocaine and, with the global financial crisis in 2008, your business struggled. You admitted your cocaine use was a problem and your marriage suffered. You separated from your wife in 2010. In 2012/2013, you started using methamphetamines to numb the pain and stress of your business and marriage failures.
29In relation to your offending, you said you were approached by the undercover operative who was wanting drugs and asking how much you could get. You said, as was common in the drug dealing milieu, you exaggerated the quantities you could obtain. You said the biggest amount you gave him was 28 grams twice. That is correct. You said you had stopped using drugs for a time and it, this offending, got you started again.
30According to Ms Lechner, you tested in the mild range for anxiety and depression. You also exhibited acceptance of post-traumatic stress disorder, subsequent to an assault on you in 2013. In her opinion, you have suffered chronic depression for the past 10-12 years. She recommends counselling to assist you to address your symptoms of low self-esteem, sadness and pessimism.
31Mr Pearson, who appeared on your behalf in written and oral submissions, contended you were an agent for others higher in the distribution chain. He submitted there was a degree of entrapment to your offending because the police officer affectively talked up the drug quantities after your initial sales involved only grams of methylamphetamine.
32In mitigation of penalty, he relies on your early guilty plea for its utilitarian value, especially so during the public health pandemic and as evidence of your acceptance of responsibility for your offending. He submitted, considered you had lived a largely law abiding life until you were 46 years old and have the support of family and friends, your prospects of rehabilitation are reasonable, provided you remain drug abstinent.
33He accepted it is appropriate to re-sentence you to a prison term for the offending which was the subject of the 2020 CCO which you breached by your 2021 offending. He also accepted a prison term is the appropriate sentence for your index offending. He submitted, overall, while accepting you will be sentenced to a term of imprisonment involving a head sentence and a minimum term, totality and proportionality are relevant to the measure of those sentences.
34Mr Goodenough, who appeared for the prosecution in written and oral submissions, contended, considering your crimes involved a number of incidences of trafficking over an extended period, your offending is objectively serious. In his submission, the appropriate sentence is the imposition of a head sentence with a non-parole period fixed. He submitted, considering your history of drug offending and that you were subject to a Community Correction Order when you committed your 2021 crimes, your prospects of rehabilitation are guarded. He described your resisting police was not at a higher level, as you were quickly overwhelmed.
35He accepted you entered an early plea to the charges on the indictment and the utilitarian benefit should follow. He also accepted the involvement and police in your trafficking is a relevant sentencing consideration.
36The maximum penalty of 15 years' imprisonment demonstrates the seriousness of the crime of drug trafficking. Charge 2 involved eight episodes of trafficking methylamphetamine which escalated in quantity from 8 balls (3.5 grams), to ounces (28 grams), to several thousands of dollars over a period of five months. In the last episode, you agreed to sell the operative three ounces of methylamphetamine but you only had around half that amount when you went to meet him.
37The quantity of drugs trafficked in each episode exceeded the statutory trafficable quantity of methylamphetamine, which is three grams pure. That you were subject to a CCO is an aggravating feature of this crime. I assess it to be upper mid-range offending of the time.
38On 9 September 2019, police arrested you at a car wash where they found approximately 67 grams of methylamphetamine in four Ziploc bags. Charge 1 involves two drug sales, one of an 8 ball of methamphetamine on 29 August 2019 and the other one gram of cocaine on 4 September 2019 to a different undercover police officer. Because it involved fewer transactions and smaller quantities than the trafficking which constitutes Charge 2, Charge 1 is objectively less serious.
39Plainly, police knew on 9 September 2019 of the two earlier drug sales. Because you were not charged with them on 9 September, you were denied the opportunity to have those matters also dealt with when I sentenced you on 6 February. While Charge 1 involves additional criminality, applying the totality principle, I will moderate the degree of cumulation of the prison term I impose on Charge 1 with the term I impose on Charge 2.
40The prosecution did not contend you had possession of the drugs which were found in your car and at your home when you were arrested for any trafficking purpose. Accordingly, I take into account the yardstick for your sentence on this charge is one years' imprisonment. I accept the resistance you offered to arresting police was at a low level. I also take into account the overlap between your offending on the charge of dealing with property suspected of being proceeds of crime and the relatively modest amount of cash you had.
41In relation to the breach of the CCO, I will cancel the order and re-sentence you. You fall to be re-sentenced for the offences of trafficking cocaine, which was Charge 1, trafficking methylamphetamine, which was Charge 2 and attempting to pervert the course of justice, which was Charge 3. You committed these crimes in 2017.
42In re-sentencing you, I must have regard to the degree to which you complied with the order. I take into account you attended when required for supervision with only two unacceptable absences and you completed 12 sessions of a ACSO drug treatment program and were drug abstinent until you relapsed in July 2021. Three months later you were arrested for the index offending and remanded in custody.
43I also take into account you attended your judicial monitoring hearings. However, I note you attended a judicial monitoring session in my court on 1 October 2021 and 10 days later on 11 October, you sold the operative an ounce of methylamphetamine for $9000. That moderated the sentences I will impose to take into account, firstly, your guilty plea which was made at an early stage. It has high utilitarian value, more so during the public health pandemic because it alleviates the stress on the justice system. I also accept it is evidence of your acceptance of responsibility for your actions.
44Secondly, an element of police entrapment is involved in your offending. I accept there is a reasonable possibility you would not have committed these crimes but for the involvement of police. Nevertheless, when the opportunity to supply drugs arose, you were willing to act on it.
45Thirdly, the additional hardship of your time in custody due to COVID related removal of visits, restrictions on programs and increased isolation through lockdowns requires moderation of your sentence and, fourthly, the application of the totality principle to ensure for your multiple offences your sentence is an appropriate measure of your criminality.
46Mr Sioulas, drugs are your curse. Your addiction which followed the failure of your business and your marriage led to your drug trafficking and drug possession convictions in 2016, 2017 and 2020. Previously, you had largely been law abiding and for a period in 2020 and 2021, when you were drug abstinent, you did not
re-offend. You have the longstanding support of your mother who will have you home with her when you are released from prison. Provided you can remain drug abstinent, I accept your prospects of rehabilitation are reasonable.47In reaching that conclusion, I take into account your age which hopefully will now bring with it a degree of life experience and maturity to help you focus on your rehabilitation. Frankly, you are too old to be dealing drugs on the streets. By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or a similar kind. I must also look to your rehabilitation, taking into account the circumstances of your offending, your personal circumstances and antecedence and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you.
48On Charge 1, trafficking in a drug of dependence (methylamphetamine and cocaine), you are sentenced to nine months' imprisonment.
49On Charge 2, trafficking methylamphetamine, you are sentenced to two years and six months' imprisonment. This is your base sentence.
50On Charge 3, possession of drugs of dependence, you are sentenced to
two months' imprisonment.51On the summary charge of dealing with property, namely, $2430.95 in cash, suspected of being proceeds of crime, you are sentenced to two months' imprisonment.
52In respect of the breach of the Community Correction Order, on the charges of trafficking cocaine (Charge 1), trafficking methylamphetamine (Charge 2) and attempting to pervert the course of justice (Charge 3), you are sentenced to
nine months' imprisonment.53I direct three months of the sentence I have imposed on Charge 1 and three months of the sentence I have imposed for the breach of the Community Correction Order be served cumulatively on the sentence I have imposed on Charge 2 and each other.
54Your total affective sentence is three years imprisonment.
55To mitigate punishment and promote your rehabilitation, I direct you serve one year and nine months imprisonment before you are eligible for parole.
56On the charge of resist an emergency worker on duty, you are convicted and fined $500. On the summary charge of unlicenced driving, you are convicted and fined $500. On the charge of breaching your CCO, I find the breach approved and make no further order.
57I declare you have already served 360 days of your prison sentence by way of
pre-sentence detention.58I consent, I make an order for the drugs and mobile phone seized from you and by consent I make an order for the forfeiture of the cash seized from you.
59Pursuant to s6AAA of the Sentencing Act 1991 (Vic), I declare, but for your plea of guilty, I would have imposed a total affective sentence of four years' imprisonment with a minimum non-parole period of two years and six months.
60Ms Maguire, are there any other matters or any matters arising out of those remarks?
61MS MAGUIRE: Your Honour, I believe there was just one final thing. It was in relation to the charge of unlicenced driving. I understand that the prosecution sought a driver's licence order. That's discretionary though, Your Honour, so I understand if that was not to form part of your sentence, but I just bring it to your attention.
62HIS HONOUR: Thank you. I didn't actually see that in the submissions. In the circumstances, I don't propose to make an order interfering or disqualifying - - -
63MS MAGUIRE: As the court pleases.
64HIS HONOUR: Was it a disqualification period that I could impose, is it?
65MS MAGUIRE: Your Honour, it's - - -
66HIS HONOUR: He's not the holder of a driver's licence, so I can't cancel it.
67MS MAGUIRE: Yes, that's so, Your Honour, and to disqualification period - and it's entirely discretionary under s28(1)(b) of the Road Safety Act 1986 (Vic).
68HIS HONOUR: All right. Well, he still has nine months to serve before he's eligible - approximately nine months to serve before he's eligible for parole, so he won't be driving - - -
69MS MAGUIRE: Yes, Your Honour.
70HIS HONOUR: He won't be driving for at least that period of time. But in the
- thank you for bringing it to my attention. In the circumstances, I don't propose to make any order under the Road Safety Act 1986 (Vic).71MS MAGUIRE: As the court pleases.
72HIS HONOUR: Mr Pearson, are there any matters for you?
73MR PEARSON: No, Your Honour. No, I think all of that, all of Your Honour's orders for cumulation add up to that which Your Honour intended to impose.
74HIS HONOUR: Yes, thank you. All right, Mr Pearson, when I adjourn the court, I'll give you the opportunity to a word in private with Mr Sioulas.
75MR PEARSON: Yes, if I could for five minutes.
76HIS HONOUR: Mr Sioulas, when we adjourn court, we'll keep the link open so you can speak with Mr Pearson privately. All right, Ms Maguire, Mr Pearson, thank you for your assistance. Adjourn the court please.
77MR PEARSON: If Your Honour pleases.
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