Director of Public Prosecutions v Sirotich

[2019] VCC 1166

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00068

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYSON SIROTICH

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 July 2019
CASE MAY BE CITED AS:	DPP v Sirotich
MEDIUM NEUTRAL CITATION:	[2019] VCC 1166

REASONS FOR SENTENCE
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Subject:Traffick drug of dependence, possession of precursor chemicals, handling stolen goods, breach of parole order.

Catchwords:  Breach of parole, presumption of cumulation, exceptional circumstances, totality

Legislation Cited:  Sentencing Act  1991

Cases Cited:R v Verdins & others [2007] 16 VR, Koumis v The Queen [2013] VSCA 47 , Johnson v The Queen [2011] 35 VR 25, Mill v The Queen [1998] HCA 70

Sentence:2 months imprisonment, cumulative upon other sentences presently being served. Combined with a 18 month community corrections order with 175 hours of community work as well as treatment and rehabilitation conditions

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Bourbon
For the Accused	Ms G. Connelly

HER HONOUR:

1Tyson Sirotich, you have pleaded guilty on indictment to charges of trafficking in a drug of dependence, possession of precursor chemicals and handling stolen goods.  You have also pleaded guilty to a summary offence of breaching your parole order.

2The charges of trafficking in a drug of dependence and handling stolen goods each carry a maximum penalty of 15 years imprisonment; the charge of possession of a precursor chemical carries a maximum of five years imprisonment; the charge of breach of condition of parole carries a maximum of three months imprisonment.

3These maximum penalties reflect the seriousness with which Parliament regards these offences.

4In terms of the circumstances of your offending, they are set out in an agreed document entitled 'Summary of Prosecution Opening', dated 18 April 2019 which is exhibited at P1.

5In short compass, on 10 April 2018 you went to Wiltronics Research, a company that specialises in selling science and technology products, where you purchased a distilling head, globe funnel holder, condenser jacket and retort stand cast base.

6On 10 July 2018, a search warrant was executed by police at your premises.  During that search police observed an inactive distillation setup as well as a number of glass bottles containing liquid in your bedroom.

7Police also located and seized an Australian passport in the name of Troy McGennisken as well as a Victorian driver's license in the name of David Davenport.  These items were stolen and formed the basis for Charge 3, in that on 10 July 2018 you dishonestly undertook the retention of those stolen goods.

8The items otherwise seized from your bedroom were subsequently analysed and revealed; firstly, 1,930 grams of a substance which included
4-amino-butanoic acid otherwise known as GABA; four exhibits which included liquid, solid substances and washings also containing GABA; 936.8 grams of a substance which included gamma butrolactone, otherwise known as GBL; 1,072.4 grams of substances which included 4-hydroxybutanoic acid, otherwise known as GHB; and also exhibits containing 500 grams of a substance which included magnesium and 150 grams of a substance which included formaldehyde.

9Charge 1, trafficking in a drug of dependence, namely GHB, refers to dates between 10 January 2018 and 10 July 2018.  It is the 1,072.4 grams of substances which included GHB that is directly relevant to this charge.  A traffickable quantity of GHB is 50 grams and a commercial quantity is 2 kilograms.  The amount with which you were found is obviously in between these two quantities and is the relevant amount with which to properly assess the gravity of your offending.

10The charge of possession of precursor chemicals relates to the substances located by police on 10 July 2018 at your premises containing quantities of formaldehyde and magnesium.  These chemicals are not capable of being used to manufacture GHB and I am told that you had those for experimentation.

11An assessment by Christopher Verdon, forensic officer at Victoria police, expressed the opinion that GHB can be manufactured from GABA via GBL and supports the contention, given what was located, that you were responsible for the manufacture of GHB.

12According to Mr Verdon, GBL can be manufactured from GABA in a variety of ways and using some of the chemicals identified at your premises.  GHB can be manufactured from GBL in a number of ways which did include, again, some of the chemicals and items located at your premises.

13The results of his analysis indicated that GHB was being manufactured from the GABA via GBL.  These findings combined with the items located form the basis for Charge 1, trafficking in GHB.

14At the time of this offending, you were subject to a parole order.  On 6 September 2018, you were sentenced to a total effective sentence of five years and six months imprisonment with a non-parole period of three years.  You had been granted parole on 10 May 2017 and released from custody on parole on 30 May 2017.

15All of the charges before me breach that order but the summary offence to which you have pleaded guilty is particularised as relating to the charge of trafficking in a drug of dependence.

16You were interviewed by police on 10 July 2018 at which time you made certain admissions.  In terms of explaining your offending, you told police that you used GBL to manage your mood, particularly anxiety, and admitted that you did attempt to make GBL sometime ago with little success and for your own personal use.

17You do not differentiate between GHB and GBL in terms of the relief, you say, it offers you.

18You told police that you had last tried to make GBL six months prior to your arrest and that you had ceased its use and had in fact been clean for six months.

19I accept the account which you gave to police in your record of interview in terms of the circumstances in which you came to be in possession of the substances and items located by police.  I am less confident about your contention that, at the time of your interview, you had been clean for six months.

20Overall this assessment is relevant to your prospects for rehabilitation which, overall, I assess as being somewhat guarded.

21Your plea to the charge of trafficking in a drug of dependence is based on the agreed position that the offence is constituted by manufacture between the dates to which I have already referred.  That time frame was set by your admissions to police and it is a matter in your favour.

22I accept that, in all the circumstances that for an offence of its type, it is towards the lower end of the scale.  I take the same view in relation to the charges of possess precursor chemicals in the absence of evidence otherwise.

23I note that there is no evidence of sale or profit nor am I satisfied that that was your motivation.

24I do accept that your motive for manufacture was personal use to self-medicate for anxiety and as such, there was no financial reward or anticipated - which goes into the assessment of the objective gravity of your offending.

25Your account is consistent through all the materials before me and, as indicated, I accept it.  Whilst it does not excuse your offending, it does put your case in a somewhat unusual category compared with others of its type.

26The breach of parole offence is somewhat different.  You were given the opportunity of being released on parole and to be supervised and monitored.  Your breach of this order was deliberate, apparently sober and represents a missed opportunity for you to effect a positive change.

27There are some positives in the report that has been tendered on your behalf from IPC Health in terms of your attendances for counselling but it does not appear that it shifted much of your attitudes.

28As a result of your arrest, you were remanded into custody on 10 July 2018 and, on 11 July 2018, your parole was cancelled by the Adult Parole Board.  You have since been serving the unexpired portion of the sentence that had been imposed upon you on 6 September 2018 and I am told this sentence is presently due to expire on 4 March 2020.

29You do have a prior criminal history.  That criminal history represents four previous court appearances.

30On 17 December 2007, you appeared at Broadmeadows Magistrates' Court for a consolidation of dishonesty, driving and drug offences.  At that time, you were placed on a community corrections order for a period of 12 months which did include treatment conditions.  It would appear that you did not comply with that court order.

31On 18 December 2009, you appeared at Melbourne Magistrates' Court in relation to a range of dishonesty driving and drug possession offences.  You were also dealt with for the contravention of the community corrections order which had been imposed upon you on 17 December 2007.  At that time, you received a total effective sentence of two years imprisonment with a non-parole period of 12 months imprisonment; 185 days were reckoned as having already been served.

32You were then sentenced on 25 July 2013 at Melbourne Magistrates' Court for a range of dishonesty offences and failures to answer bail.  In relation to those matters, you were convicted and sentenced to six months imprisonment with 192 days reckoned as having already been served and hence would have been released from custody immediately.

33Your fourth and final appearance is the one to which I have already referred.  On 6 September 2013, you were convicted and sentenced to five years and six months imprisonment with a non-parole period of three years in relation to two charges of armed robbery, one of attempted armed robbery and one of possession of a drug of dependence.

34You are not to be punished for this offending a second time but it is relevant in order to assess, firstly, your prospects for rehabilitation and also the weight that needs to be given to denunciation, specific deterrence and protecting the community from you.  It does not appear at this stage that the imposition of gaol sentences or supervisory orders are causing you to adjust your resort to offending behaviour.

35In relation to these matters, you entered your plea of guilty at the committal mention proceedings at the Melbourne Magistrates' Court on 16 January of this year and without testing any of the evidence.

36I accept that your plea of guilty has utilitarian value and has saved the court the time and expense of contested proceedings in both the Magistrates' Court and this court.

37I accept also that this plea reflects the taking of responsibility by you for your offending.  These matters will all be reflected in your favour in the penalty imposed.

38In terms of your personal circumstances, I have been provided in both written and oral form, some of your background and I take into account those personal circumstances.

39I am told you are now 31 years of age and the second of three siblings born to your parents, Serge and Julie.  You have an older brother, Leigh, and a younger brother, Luke.

40You grew up in Keilor East and describe your father at that time as being angry and absent.  You have never had a close relationship with your mother.

41You have a Year 8 education.  At the age of 13 years, you were placed into foster care.  When your mother refused your request to return home, you severed all ties with her and the rest of your family.  Since that time, you have not spoken with either your mother or brothers.

42In more recent times, you have reignited the relationship with your father who sought you out.  Indeed, you came to live with him whilst on parole.  You have maintained this relationship and intend to reside with him upon your eventual release.

43Hopefully, the import of this relationship is something on which you can focus upon your return to the community and may assist you to otherwise amend your ways.  You do have a longstanding relationship with drugs, particularly GHB which, as I have said, you believe reduces your symptoms of anxiety.

44This matter initially proceeded before me on 17 May 2019 but it was adjourned to obtain a psychological assessment.  I have now received a report authored by Ms Carla Lechner, clinical psychologist, dated 3 July 2019.

45You detailed to Ms Lechner that your drug of choice is GHB as you find it a “wonder drug” for your anxiety.  You are of the belief that consuming this substance allows you to be normal.

46She diagnoses you with clinical depression.  Your counsel calls into your aid the principles in R v Verdins & others [2007] 16 VR 269 and she primarily focuses on limbs 3 and 5.

47Limb 3 refers to whether general deterrence should be moderated or eliminated as a sentencing consideration depending on the nature and severity of the symptoms exhibited and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

48Limb 5 refers to the existence of the condition of the date of sentencing or it is foreseeable reoccurrence which may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

49Whilst I have no reason not to accept the uncontested diagnosis of depression, in my view, the report authored by Ms Lechner does not assist me to form the view that either limb 3 or limb 5 have application in your case.  It is not axiomatic that the diagnosis in itself means that they do.

50Ms Lechner's report also indicates that you are, unfortunately, quite comfortable in the gaol setting as you find it less stressful.  She also diagnoses you with stimulant use disorder in early remission in a controlled environment which - basically means you are away from drugs whilst in custody - and diagnoses you with social anxiety disorder.

51It seems to me that all of your conditions, and in that reference I am referring to your depression, your stimulant use disorder and your social anxiety disorder, need to be addressed in order to reduce your risk of reoffending.  This will require a considerable shift in your own thinking.  If you are to endorse assistance, it needs to be in a way permissible by law, an approach which will be in both yours and the community's interests.

52Ms Lechner does recommend, in terms of treatment conditions, that you would be assisted by psychological counselling to deal with your social anxiety.  I can only recommend that you give this real consideration.

53The basic purposes which a court may impose a sentence are punishment, general deterrence - that is sending a message into the community-,  specific deterrence - that is sending a message to you-, rehabilitation, denunciation and protection of the community.

54In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.

55I am also required to balance the interest of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure that, as far as possible, offenders are rehabilitated and are reintegrated into society.

56I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act 1991 where relevant to your case as well as the current sentencing practices for the offences to which you have pleaded guilty.

57Relevant also to the sentencing process is s.16(1A)(d) of the Sentencing Act. The presumption of concurrency which is otherwise contained in s.16(1) of the Sentencing Act does not apply to a term of imprisonment imposed on any person for an offence committed whilst they are released under a parole order.  As already referred, you were the subject of a parole order at the time of the three charges on the indictment.

58Further, s.16(3B) and s.16(3BA) also have direct application to your case.  Every term of imprisonment imposed on a person for an offence committed whilst released under a parole order made in respect of another sentence of imprisonment, unless otherwise directed by the court because of the existence of exceptional circumstances, must be served cumulatively on any period of imprisonment which may be required to be served in custody on cancellation of that parole.

59The summary offence requires that, again, you need to establish the existence of exceptional circumstances or the sentence imposed for that offence must be cumulative on any period of imprisonment that you may be required to serve on cancellation of parole and on any period of imprisonment imposed for an offence committed whilst released under parole order.

60Your counsel argues that exceptional circumstances exist in your case on a combination of factors.  These include the lack of commerciality with the charge of trafficking, the application of the Verdins principles, the application of mercy which may be considered through the chronology and any limitation on the court in terms of sentencing that may be affected by the application of the need for cumulation as per the legislation.

61This of course needs also to be balanced with the principle of totality.  The totality principle requires that where an offender is being sentenced to multiple terms or is otherwise to serve multiple sentences, then the sentences should ensure that the total sentence remains just and appropriate for the whole of the offending.

62In order to properly assess this factor, I have had regard to the sentencing reasons of His Honour Tinney J from 6 September 2013.  It is trite to say that that offending was objectively more serious than the matters before me and you received from him a significant period of imprisonment.

63I have been assisted by both written and oral submissions from both defence and prosecuting counsel together with recourse to the decisions of Koumis v The Queen [2013] VSCA 47 and Johnson v The Queen [2011] 35 VR 25.

64I have already commented on the applications of the Verdins principles.  In my view the matters raised on your behalf do not constitute exceptional circumstances either alone or in combination.

65However, I am of the view that the totality principle should be affected in the sentence imposed and may, at first blush, give the appearance of undue leniency being extended.  This is in consideration of fairness to you, in your present situation, playing a dominant role in the determination of what should occur in the matter of sentence.

66In so doing, I must also have regard to the cumulative effect of the sentence and moderate the sentence to be imposed notwithstanding that it may appear to inadequately reflect the seriousness of your offending.

67In the decision Mill v The Queen [1998] HCA 70, the High Court stated that an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed.

68Obviously, given what I have already said, I am not in a position to consider the former.

69I must also ensure that any application of the totality principle is one which will not undermine the legislative policy inherent in s.16(3B).

70Both parties submit that what is referred to as a combination sentence would adequately address all the relevant sentencing considerations. A combination sentence refers to a term of imprisonment in combination with a community corrections order. This requires me to consider the provisions of s.44 of the Sentencing Act 1991 and I do so.

71I am not of the view that this, in any way, limits my sentencing discretion.

72I have had you assessed as to your suitability for a community corrections order and have received an assessment outcome report authored by Sam Williams.  This assessment finds that you are a high risk of reoffending but that you are suitable for a community corrections order.

73I note your comment to the assessor that parole previously, 'Did nothing for me'.  I can only hope that you do not have the same approach to a community corrections order which is in fact designed to effectively supervise you in the community with the view to promoting your rehabilitation and therefore protecting the community.

74I do make the ancillary orders that are sought for forfeiture of the Australian passport and Victorian driver's licence that was seized from your address.

75Otherwise, in terms of sentence, for Charge 3, handling stolen goods, you are convicted and fined the amount of $800.

76In relation to charges of trafficking in a drug of dependence and possession of precursor chemicals, I propose to impose an aggregate sentence as I am satisfied that the offences are founded on the same facts or form or are part of a series of offences of the same or similar character.  In so doing, I do bear in mind the principles of totality and proportionality.

77In relation to Charges 1 and 2, you are convicted and sentenced to one months imprisonment.

78In relation to the summary offence, breach of a prescribed condition of parole and what I consider a serious breach, you are convicted and sentenced to one months imprisonment which is cumulative on the sentence imposed on Charges 1 and 2 on the indictment.

79This comprises a total effective sentence of two months imprisonment which is cumulative on the sentence you are presently undergoing.  One day is reckoned as time already served.

80On completion of that sentence, you are to commence a community corrections order for a period of 18 months.  This order attaches to Charges 1 and 2 on the indictment.

81Under this order, you are to complete 175 hours of community work, to be supervised by the Office of Corrections, to undergo assessment and treatment for drug use and abuse as well as to submit for mental health treatment.

82Fifty hours of treatment will be offset against the community work.  So the more treatment, the more comes off the community work component.

83This, in my view, in terms of the punitive aspects and treatment aspect does deal with both general and specific deterrence as well as the risk assessment.

84In addition to the conditions that I have imposed, there are standard conditions to corrections orders.  The first of those, and the foremost of those, is you must not commit any other offence during that 18‑month period which can be punished by imprisonment.

85You must also report within two working days of your release to the nearest community corrections office.  You are required to advise your corrections office of any change of address of where you are living or working and you must do so within two clear working days.

86You are required to submit for visits as directed and must obey all of the instructions and directions of a community corrections officer.  You cannot leave the State of Victoria without their permission.

87In my view, you should be under no illusion that this outcome presents you with an opportunity to change your life in a positive fashion should you choose to take up the opportunity.

88As I have said, this order can be breached if you do not comply with it in terms of the conditions or if you reoffend during its operation.

89If this occurs, you will be required to come back before me for a contravention hearing.  It may require me to resentence you for Charges 1 and 2 as well as considering the charge of contravening the corrections order.

90Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed had you not pleaded guilty to the charges.  This is somewhat complicated in the circumstances of this particular case, but if not for your pleas of guilty, I would have sentenced you to a total effective sentence of eight months cumulative on your present sentence.

91Now, I can only place you on that corrections order if you are prepared to sign the document to that effect.  Are you prepared to sign those documents?

92OFFENDER:  Yes.

93HER HONOUR:  All right.  Well, they will come out shortly and if you wish to discuss those or take your client through them, Ms Connelly, you are more than welcome to do so.

94MS CONNELLY:  Your Honour, may I just raise one matter?

95HER HONOUR:  Yes.

96MS CONNELLY: I thought I heard Your Honour say that the community corrections order commenced at the completion of the sentences of imprisonment that Your Honour just imposed and they may do but s.44(3) is expressed such that a combination sentence ‑ ‑ ‑

97HER HONOUR:  It is completion of any sentence, Ms Connelly.

98MS CONNELLY:  Completion on release of the offender from imprisonment.

99HER HONOUR:  That is right.

100MS CONNELLY:  Yes.

101HER HONOUR:  So it is not on release of imprisonment from Charges 1 and 2.  It is from his release from imprisonment.

102MS CONNELLY:  Yes.  Sorry, I just wanted to make sure there was not anything in Your Honour's orders that expressed something more narrow.  That is all.

103HER HONOUR:  Yes, well, I am very grateful always for those sorts of entreaties but I meant to reference ‑ ‑ ‑

104MS CONNELLY:  Yes.

105HER HONOUR:  ‑ ‑ ‑ what amounts to the term of imprisonment in totality.

106MS CONNELLY:  Yes, sorry.

107HER HONOUR:  Not necessarily I wanted to use that word in the circumstances but - so as soon as he is released, he should be in a position to start it is the bottom line.

108MS CONNELLY:  Yes.

109HER HONOUR:  Yes.

110MS CONNELLY:  May I approach Mr Sirotich, while that is being signed?

111HER HONOUR:  Yes.  Yes, take that order with you if you wish.  Otherwise, all right?

112MS CONNELLY:  Thank you, Your Honour.  Yes.

113HER HONOUR:  All right.  Nothing from your end, Mr Bourbon?

114MR BOURBON:  No.  No, Your Honour.

115HER HONOUR:  All right.  Mr Sirotich, I do genuinely wish you all the best this time.  I really do not want to see you again.  All right?

116OFFENDER:  You won't.

117HER HONOUR:  I am very pleased to hear that.  All right.  Thank you.

118OFFENDER:  Yes.

119HER HONOUR:  Counsel are excused.  I have not another matter to deal with and I thank you both ‑ ‑ ‑

120MR BOURBON:  As Your Honour pleases.

121HER HONOUR:  ‑ ‑ ‑ very much for your assistance which was gratefully received at all stages.  Yes.  So you are excused from the Bar table.  Do not consider it rude.

122Ms BOURBON:  Thank you.

123Ms CONNELLY:  Thank you, Your Honour.

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