Director of Public Prosecutions v Skoric
[2019] VCC 1748
•24 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02183
Indictment No. J11530946
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NIKOLA SKORIC |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 16 October 2019 | |
DATE OF SENTENCE: | 24 October 2019 | |
CASE MAY BE CITED AS: | DPP v Skoric | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1748 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Traffic in a drug of dependence - commercial quantity – methyl amphetamine – drive without licence
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Road Safety Act 1986
Cases Cited: DPP v Del Nigro [2017] VCC 1680
Sentence: 3 years and 4 months imprisonment with a non-parole period of 25 months. Pre-sentence detention of 502 days.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E Danks | Office of Public Prosecutions |
| For the Offender | Mr D Sala | Stephen Andrianakis & Associates |
HIS HONOUR:
1
Nikola Skoric, on 16 October 2019 you pleaded guilty that at Melbourne, on
9 September 2018, you did traffic in a drug of dependence, namely methylamphetamine, in a quantity that was not less than the commercial quantity applicable to that drug of dependence, contrary to s.71AA of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is 25 years’ imprisonment. You also pleaded guilty to a summary charge that on 9 June 2018 you did drive a motor vehicle on a highway, namely Chong Court, Berwick, without being the holder of a driver’s licence or permit, contrary to s.18(1)(a) Road Safety Act 1986. That offence carries a maximum penalty of 25 penalty units or three months’ imprisonment.
Circumstances of offending
2 A Summary of Prosecution Opening was tendered at the plea hearing and marked Exhibit A.
3 In summary, on 9 June 2018, at approximately 11.38 pm, police saw an Audi A5, registration XLB 260, travelling at high speed, drive around a bend from Melzak Way, Berwick, into Chong Court. You were the driver of that car. Police activated their car’s lights and sirens and followed you in an easterly direction on Chong Court. You turned into the driveway of 6 Chong Court and came to a stop. You got out of your car and approached the police, saying 'Ah you got me. I don’t have a licence'. Police asked for your name and address and to see your licence. You gave them your name and address and repeated that you did not have a licence.
4 The car you were driving was registered to your girlfriend, Joanna Batsas, at
6 Chong Court, Berwick. Police confirmed that you were not licensed to drive.
5 While one of the police members, Constable Valher, went to speak to
Ms Batsas, First Constable Jones (Jones) remained with you at the front of the property. You were observed by Jones to be erratic and evasive. At some point soon thereafter, police looked through the front passenger window of the Audi and saw a large clear snap-lock bag containing multiple smaller bags with a 'Tom and Jerry' logo on the floor of the front passenger seat foot well. You were standing, watching and then yelled 'fuck, I think someone is in the backyard'. You ran to the fence and attempted to climb over it into the backyard. Police chased after you and you continued to yell 'someone is in my backyard'. You then ran inside the house, with police following. No one was seen to be in the backyard. You were caught and placed under arrest by Jones.
6 You were searched by police before being placed into the rear of the Divisional Van. Police did not locate the key to the Audi. Ms Batsas confirmed that the car was one that she used for her car-hire business and gave police a key to the car. A search of the car was conducted. In the Audi, police located:
(i)an A4-sized snap-lock bag containing 17 smaller snap-lock bags, each containing a crystal-like substance; and
(ii) a box of small snap-lock bags with 'Tom and Jerry' logos.
7 You were interviewed by police at the Narre Warren Police Station on 10 June 2019. You answered 'no comment' to the majority of the questions asked, but did answer some. You told police you had been driving the car for 30 minutes to an hour; that you had come from your home address in Cranbourne; and that you had just dropped off your seven year old daughter. You stated that you did not know what was in the car but agreed that if you had looked down to the passenger side foot-well you would have seen what was there. You said you did not look. You told police you borrowed the car from Ms Batsas and that you had it 'for a couple of hours'. In view of your plea, your assertion that you did not know what was in the car was clearly false.
8
Your DNA matched two DNA samples taken from the exterior of the larger
snap-lock bag.
Drug analysis
9 Analysis of the crystal-like substance found in the plastic bags in the car showed:
i.
448.4 grams of a mixed substance which was approximately 87 per cent methylamphetamine, being the contents of sixteen of the smaller
snap-lock bags.
ii.21.0 grams of a mixed substance which was approximately 88 per cent methylamphetamine, being the contents of the seventeenth smaller snap-lock bag.
10 The total quantity found was 469.4 grams, of which 408.58 grams was pure methylamphetamine.
11 The amount of drug found is a little over eight times the commercial quantity of pure methylamphetamine, or 1.88 times the commercial quantity of a mixed substance.
12
The charge of trafficking in not less than a commercial quantity is put on the basis that you were in possession of the drug for sale. The prosecution accepts that your role was that of a courier transporting the drugs on the day of your arrest, with the knowledge that those drugs were intended for sale.
The prosecution further accepts that you were not the owner of the drugs, and it is not put that you were to receive any financial reward for the sale of the drugs. The prosecution does not dispute the submission made by your counsel, Mr Sala, that you were to receive drugs in exchange for your assistance.
13 It was submitted on your behalf that you were a drug user at the time of the offending. Also found in the car was a syringe containing liquid Gamma Hydroxybutyric Acid (GHB).
Background and personal history
14 You were born in Albury, New South Wales, on 13 October 1987. You are now 32 years of age. When you were a young child your family moved to Cranbourne, Victoria. Your father works as a truck driver and your mother as a sales clerk. You have an older brother who is employed as a cabinet maker; a younger sister, employed as a nurse; and another younger sister, employed with Telstra.
15 Your parents came to Australia from Serbia and have maintained much of their Serbian culture through contact with the wider Serbian community at church and various social gatherings. I am told that you grew up in a close and loving family and that there were never any major issues during your childhood.
16 At the age of 16, you left secondary school as you were keen to work. It is not clear whether you successfully completed Year 9. You were not able to recall.
17 Soon after leaving school you gained an apprenticeship as a tool maker with a local company. You successfully completed your apprenticeship at the age of 20. However, you did not enjoy the work and left to obtain other employment. You secured work in the concreting industry and held a job for some 12 months before obtaining employment with a cladding firm. You installed cladding for some four years, to the age of 25, working five to six days per week.
18 Mr Sala submitted that there were two significant matters in your life that led to your spiral into drug use and offending. The first was your discovery, in 2012, that your wife was having an affair. The second was a car accident in 2012 in which you suffered a serious back injury, and which has left you with ongoing pain. You were a hospital inpatient for 11 days following that accident.
19 Mr Sala submitted that up to the time you discovered that your wife was having an affair you had lived an uneventful life, working hard and providing for your family. Your daughter was approximately 12 months of age when you discovered the affair.
20 Upon discovering the affair and within a six to 12 month period, you and your wife separated. Despite your wife’s affair it was a relatively amicable separation and you continued to enjoy weekend access with your daughter.
21 As a result of your separation, as well as the pain you were suffering from the back injury, you began to drink heavily and started to use illicit drugs. The main drugs you used were 'Ice' (methylamphetamine), amphetamine, and GHB.
22
You began associating with others who were part of that drug subculture.
Your interest in work and your work attendance began to drop off and you eventually stopped working.
23 The car accident occurred after your separation from your wife. I am told you have no memory of the accident. However, you pleaded guilty to a number of charges arising from that accident. On 3 December 2014, at the Dandenong Magistrates’ Court, you were convicted and fined for the fraudulent use of number plates, using an unregistered motor vehicle, driving without P plates displayed, failing to give way at an intersection, driving while authorisation was suspended and driving under the influence of a drug. Your licence was cancelled and you were disqualified from driving for a period of six months.
24 On 11 February 2014, at the Dandenong Magistrates’ Court, you were convicted and placed onto a Community Corrections Order in relation to a burglary and theft. Mr Sala informed me that those offences related to a burglary at a veterinary clinic. You instructed Mr Sala that you had no reason to break into and steal from the veterinary clinic and that you were then well and truly under the influence of illicit drug use.
25 Your last convictions occurred on 22 October 2015 in relation to two contraventions of Community Corrections Orders. It was submitted on your behalf that the contraventions were 'technical' in nature and not as a result of further offending. Despite the contraventions, you completed the Orders, together with all hours of community work you were required to perform. I note that in respect to one of the contraventions, the original order was varied on condition that you perform 100 hours of unpaid community work, with the Order expiring 12 months from 22 October 2015. With respect to the other contravention, I note that it included a condition that you undergo treatment and rehabilitation for drug abuse or dependency as directed, in addition to mental health assessment and treatment, as directed. If such treatment was obtained it clearly was not successful.
26
You have a number of other prior convictions, including driving whilst disqualified, 18 May 2015; possession of a controlled weapon without excuse, 16 September 2018; failing oral fluid drug test within 3 hours of driving,
13 February 2018; driving whilst authorisation suspended, 15 May 2012; and exceeding prescribed concentration of alcohol (traffic infringement notice),
18 October 2008. You admitted your prior convictions.
Sentencing considerations
27 I turn to a consideration of the nature and gravity of your offending. I leave aside for now the summary offence which will be dealt with later. It was conceded by your counsel that the trafficking charge was serious. This is so particularly because of the quantity of drug involved. As was said by the Chief Judge in DPP v Del Nigro[1]:
'The sentencing regime for drug trafficking offences is a quantity-based regime. While quantity is not determinative of seriousness, it is a significant factor and all other things being equal, the larger the quantity, the more serious the offence. The potential for harm to the community is partly measured by the quantity of the drug involved.'
[1] [2017] VCC 1680 at [14]
28 As noted, the amount of the drug you trafficked was over eight times the commercial quantity when regard is had to the purity of the drug, or 1.88 times the commercial quantity when regard is had to the mixture. Further, you knew that the drug was to be sold and would find its way into the community.
29 You were not the subject of any police surveillance and it was fortuitous that you were stopped by police for an unrelated driving offence. As was submitted by Mr Sala, it was your reckless driving that brought you to the attention of police and that this, as well as the open location of the drugs in the car, reflects a lack of sophistication on your part.
30 Mr Sala submitted that your role was that of a courier and by reason of that role and the fact that this offence was committed on a single day, you fall to be sentenced at the lower end of the range for the offence of trafficking in a commercial quantity.
31 The learned prosecutor, while submitting that a courier performs a necessary role in a drug-trafficking enterprise, accepted that couriers are at the lower end of the drug trafficking hierarchy. It was not disputed that you were a courier.
32 I accept that was the role you played and that your offending occurred on a single day. However, I also have regard to the quantity of drugs trafficked in assessing the seriousness of your offence.
33 The submission that you were, in effect, to be paid in drugs was not challenged. It is consistent with your history of drug use and the finding of a syringe in the car. There is no evidence of enrichment or that you were to receive any cash.
34 You pleaded guilty after a contested committal hearing on 24 October 2018. The issue at the committal hearing was whether the search of the car conducted by police was legal. Thus, your plea was not entered at the earliest opportunity and you did not then take responsibility for your offending.
35 I am not able to find that the plea of guilty itself is indicative of any remorse, but I accept that there are utilitarian benefits to the community as a result of your plea. Witnesses were not required to give evidence at trial and the community was spared the expense of a trial.
36 I consider that general deterrence is a significant sentencing factor in this case. Trafficking in methylamphetamine is a prevalent offence and couriers play a key role in the dissemination of drugs into the community. There is a strong need to deter others from engaging in the business of drug trafficking.
37 I accept the prosecution submission that in the case of trafficking in methylamphetamine general deterrence has a greater prominence. As was said by Tate JA in Fernando v R[2] in the case of trafficking in methylamphetamine '… there should be a greater focus on general deterrence than when another drug is trafficked.' This because of the prevalence of the offence of trafficking in methylamphetamine. See also Haddara v R.[3]
[2] [2017] VSCA 208 at [73]; (2017) A Crim R 26
[3] [2016] VSCA 168 at [66]-[67], [69]; (2016) 260 A Crim R 306
38 Your counsel submitted that I should place less weight on specific deterrence. There is regrettably insufficient evidence that would enable me to take that course. You have a history of offending and you have a relatively lengthy history of illicit substance abuse dating back to 2012. You were aware from your previous offending, in particular the burglary and theft, the impact that drug use has upon you. Despite that, you continued to use drugs up to the day of your arrest. There is no evidence before me that would enable me to place less weight on the need for specific deterrence than what would otherwise be appropriate. In considering this submission, I do have regard to your efforts at rehabilitation in custody and the fact that this is your first time in custody. However, there is insufficient evidence to establish that you are rehabilitated. Accordingly, I consider that the sentence I impose must also be designed to deter you from committing further offences. I cannot see any basis for reducing the weight to be given to specific deterrence.
39 I must also impose a sentence that denounces your conduct, reflects just punishment and protects the community. I have also had regard, as best I can, to current sentencing practice.
40 I am also to have regard to the question of your rehabilitation. It is important in your case given the circumstances that led you to become addicted to drugs following what was an otherwise relatively good history, as well as your recent efforts in custody.
41 In my opinion, based on the limited evidence before me, and the submissions of your counsel, I consider that your prospects of rehabilitation are reasonable. I have regard to the following matters:
i. Character reference of Miroslava Medojevic who speaks of your better qualities including being respectful of and helping others in the community.
ii. Your background before the discovery of your wife’s affair was that of a supportive family man, with a good work history and with only some minor convictions.
iii. I am told you have a good and supportive family and I note that your mother and brother were at Court to support you at the time of the plea hearing. They visit you in custody as often as they can. Until recently, you were also enjoying regular visits with your daughter who has now moved to NSW.
iv. Significantly, after some initial difficulties in custody with drug use, you have worked as a billet at Fulham Prison where you look after its grounds. You are the senior billet, which reflects well on your work ethic and how you are regarded by the prison authorities. I am told that you have remained drug free since those initial difficulties.
42 It is regrettable that as a remand prisoner you have not been able to access any programs designed to treat your drug addiction and offending behaviour. Whilst this is through no fault of your own, it means I have no evidence before me as to the extent of your rehabilitation with respect to drug abuse and the risk of relapse. I add that I have not been provided with any medical or psychological reports that would assist me further with regard to the question of your rehabilitation.
43 Your counsel properly accepted that the only sentence open was one of imprisonment. It was submitted by Mr Sala that I impose a lower non parole period than what would otherwise be appropriate given your rehabilitation to date. For reasons earlier expressed there is insufficient evidence as to the extent of your rehabilitation. Accordingly, I cannot accept that your case warrants a lower non parole period that that which would be appropriate in all of the circumstances.
44 Having regard to each of the sentencing factors that I am required to take into account the sentence I impose is one of three years and four months. I set a non-parole period of 25 months.
45 Pursuant to s.18 Sentencing Act 1991, I declare that 502 days have already been served under this sentence and I direct that the time already served be entered into the records of the Court.
46 Had it not been for your plea of guilty I would have imposed a sentence of imprisonment of three years and 10 months with a non-parole period of 32 months.
Summary offence
47 In relation to the summary charge of unlicensed driving you are convicted and fined an amount of $400. Any driver’s licenses held by you are cancelled and you are disqualified from driving for a period of six months from today's date.
Disposal Order
48 I make the order sought in relation to the four items appearing in the schedule to the Disposal Order.
49 OFFENDER: Sir, what was my sentence again?
50 HIS HONOUR: Your sentence, Mr Skoric, is one of three years and four months with a non-parole period of 25 months.
51 OFFENDER: Okay, thank you. All right, yep.
52 HIS HONOUR: That is all right and I have declared the 502 days you have already served as part of that sentence.
53 OFFENDER: Oh so it starts from when I first got locked up, yeah?
54 HIS HONOUR: That's right, Mr Skoric.
55 OFFENDER: Yeah, okay, thank you. Yep, cool.
56 MR SALA: Thank you, Your Honour.
57 HIS HONOUR: All right, no other matters?
58 MR SALA: No other matters, thank you, Your Honour.
59 MS DANKS; No, Your Honour.
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