Director of Public Prosecutions v Sovolos

[2015] VCC 1306

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01792

DIRECTOR OF PUBLIC PROSECUTIONS

v

DIMI SOVOLOS
CUONG HOANG
MICHAEL BARBARO

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 September 2015
CASE MAY BE CITED AS:	DPP v Sovolos
MEDIUM NEUTRAL CITATION:	[2015] VCC 1306

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin
For Accused Sovolos	Mr G. Defteros
For Accused Hoang	Mr R. Backwell
For Accused Barbaro	Mr M. Brenan

HIS HONOUR: 

1

Cuong Hang Hoang, you have pleaded guilty to an indictment charging you with trafficking in methylamphetamine between 21 November 2013 and

17 December 2013, to an offence of possession of diacetylmorphine on

11 February 2014, to possession of 1,4-Butanediol on 11 February 2014 and to an offence of setting a trap with the intention of causing serious injury to another on 11 February 2014.

2You have also admitted a number of summary offences, Charge 13, possessing a prohibited weapon, namely a ASP baton on 11 February 2014.  Charge 14, on the same date, possessing a prohibited weapon, namely a taser.  Charge 15, the same date, possessing a prohibited weapon, namely a taser, and Charge 16 of possessing cartridge ammunition in an unsecured manner while not being licensed.  You have also admitted a number of prior convictions or at least two prior convictions, both on 7 November 2012, one involving possession of heroin.

3You, Michael Barbaro, have pleaded guilty to an indictment charging you with trafficking in methylamphetamine between 17 January 2014, 11 February 2014 and with an offence of possessing an unregistered Category A or B long arm on 11 February 2014.  You have admitted a number of prior convictions, including offences for drug matters.

4

You, Dimi Sovolos, have pleaded guilty to an indictment charging you with trafficking in a drug of dependence, namely methylamphetamine, between

20 November 2013 and 11 February 2014.  In Charge 2 with possessing an unregistered Category A or B long arm.  Charge 3 with an offence of handling stolen goods.  Charge 4, with an offence of theft, and Charge 5, an offence of theft.  You have also admitted a number of prior court appearances and convictions.

5The prosecution have relied upon a summary of prosecution plea opening.  It is quite a lengthy document.  It is Exhibit A in the proceedings and I am not going to attempt to summarise it, I am going to incorporate it in its entirety to these reasons for sentence and I will simply say that the prosecution of each of the three of you arose from an investigation into the trafficking of methylamphetamine by a Mohammed Khoder and his associates.

6It was as a result of that investigation that your role in that trafficking criminal enterprise emerged.  Each of you played different parts, but each of you were engaged in one way or another in the trafficking of methylamphetamine in association with Mohammed Khoder and his associates.

7The maximum term of imprisonment for trafficking in methylamphetamine is 15 years.  In each of your cases that is the most serious charge on the indictment and amongst the summary offences to which you, Hoang, have pleaded guilty.

8The prosecution summary also identifies sentences imposed on Mohammed Khoder being one of 7 and a half years and a non-parole period of five years, on Alogo Afui for trafficking in methylamphetamine, the amount being 666.5 grams, for which he was sentenced to six months' imprisonment and a three year community correction order with 400 hours of unpaid community work.  I was also supplied with the sentencing remarks of His Honour Judge Bourke in relation to that sentencing order.

9In addition others associated with this larger criminal venture, Amia Khoder was sentenced to two months' imprisonment which was in fact time served plus 12 months' community correction order with a requirement that he perform 250 hours of unpaid community work.

10Chris Mitikouras, for trafficking was sentenced to 21 months community correction order with a requirement that he perform 250 hours of unpaid community work, and Chris Razos was sentenced for a similar offence of trafficking in methylamphetamine to a community correction order with a requirement that he perform 250 hours of unpaid community work.

11Each of you have presented a plea in mitigation and those are supported by plea outlines, some of which are quite detailed.  Mr Backwell's was brief, but nevertheless identified the principal points that were relied upon in relation to your case, Mr Hoang.

12The cases put on behalf of each of you can be summarised in this way because there are a number of similarities.  Each of you are still relatively young.  Each of you has pleaded guilty to the offences.  Each of you has expressed remorse.  The role played by each of you seems to me to be certainly significantly less than that of Mohammed Khoder.

13

In your case, Mr Hoang, perhaps in the nature of being on par with that of

Mr Afui or thereabouts.  In the cases of Messrs Barbaro and Sovolos it seems to me that their roles are less than that of Mr Afui.  That is not to say that the roles played by each of you are insignificant.  Rather the reverse, but each of you it seems has support, family and friends.  Each of you exhibits good and perhaps guarded, but reasonably good prospects of rehabilitation.

14Each of you have had drug dependency problems, including problems with the drug ice, and it seems to me that each of you is still grappling with, and perhaps will need to continue to grapple with those substance abuse problems.  I can say about the sentencing exercise in respect of each of you that had it not been for the fact that I was constrained by considerations of parity, I would have been inclined to impose sentences that were greater, if not significantly greater, than those which I intend to impose upon you.

15Whilst there are many things which can be and have been prayed in aid on behalf of each of you in your favour, these are serious offences.  They were serious examples of trafficking in methylamphetamine, and in my opinion would ordinarily warrant a quite substantial term of imprisonment.

16However I am constrained by considerations of parity and that fact has been frankly acknowledged on behalf of the prosecution. I have already indicated that it seems to me in each of your cases that the sentences of imprisonment should reflect time served, but to be coupled with a community correction order which is designed in some cases to add, and in your case, Mr Barbaro, rather significantly to the punitive element of the sentence. But in each of your cases also to provide some rehabilitative treatment conditions that are designed to help you to put this offending conduct behind you and to deal better with your underlying drug abuse problems and/or mental health issues to the extent that they are relevant.

17I do not think I need to dwell on the effect of the material that is put in support of those propositions because it seems to me that those propositions are well supported in each case and the material in support is part of the court file and may be made available to the extent that this sentence is called into question elsewhere.

18I give you credit of course, each of you, for your pleas of guilty, and having concluded that there is a sound basis in each case for the submissions by your counsel that you should be made the subject of a community correction order, I had you assessed. Each of you has found to be suitable for a community correction order, and I am intending to impose such an order with the conditions that are recommended in those reports.

19Each of you has had the opportunity of discussing that proposition with your counsel.  I do not in the cases of Mr Sovolos or Mr Hoang intend to include amongst the conditions any requirement for the performance of unpaid community work.  In the case of Mr Barbaro, because his pre-sentence detention is a mere 53 days in comparison with that of Mr Hoang, being 574 days, and in Mr Sovolos' case, 216 days, it seems to me that it is necessary in order to impose a satisfactory level of punishment, and to satisfy the conditions or the principles of denunciation, individual and general deterrence in your case, Mr Barbaro, that I require you to perform unpaid community work in a total of 300 hours.

20I recollect informing you of that or something similar on the last occasion.  Each of you has had the opportunity of considering whether you are prepared to consent to orders in the terms that I have outlined.  Are you each prepared to consent to orders in those terms?  Yes?  Mr Barbaro, are you nodding?  You are.

21

I will then proceed to sentence in relation to each of you, starting with you,

Mr Hoang.  Would you mind standing please?  On Charge 1 on the indictment of trafficking in methylamphetamine I convict you and sentence you to imprisonment for a period of 574 days.  On Charge 2 of possession of heroin I convict you and sentence you to imprisonment of 60 days.

22On Charge 3 of possessing 1-4 Butanediol I convict you and sentence you to imprisonment for a period of 60 days.  On Charge 4 of possession of setting a trap with the intention of causing serious injury to another I convict you and sentence you to imprisonment for a period of 90 days.

23For the summary offences on Charge 13 of possessing a controlled weapon I convict you and sentence you to imprisonment for a period of 30 days.  Similarly on Charge 14 of possessing a controlled weapon I convict you and sentence you to imprisonment for a period of 30 days.

24On Charge 15 of possessing a controlled weapon I convict you and sentence you to imprisonment for a period of 30 days.  On Charge 16 of possessing cartridge ammunition in an unsecure manner whilst unregistered I convict you and discharge you.  All of those sentences are to run concurrently.  The total effective sentence is therefore 574 days imprisonment and I declare 574 days of pre-sentence detention as time to be reckoned as served on the sentences that I have imposed and deducted administratively from the period you will actually have to serve.

25In addition for the offences on the indictment I order that you be subject to a community correction order for a period of two years which will commence today, and for that period you will be under the supervision of the Department of Corrections and you will be required to be assessed for and participate in drug treatment programs as directed by the Regional Director.

26I make the ancillary orders in accordance with the drafts with which I have been provided and in your case, Mr Hoang, I think they are made up of forfeiture and disposal orders.  But for your pleas of guilty I would have sentenced you to  a total of three years' imprisonment with a non-parole period of two years.  You can take a seat.

27Mr Barbaro, on Charge 1 on the indictment I convict you and sentence you to imprisonment for a period of 53 days.  On Charge 2 on the indictment I convict you and sentence you to imprisonment for a period of 30 days.  The total effective sentence is therefore 53 days imprisonment.  I declare 53 days of pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and to be deducted administratively from the time you will be required to serve, which of course is no further time.

28In addition I order that you be the subject of a community correction order for a period of two years commencing today, and in addition to the core conditions you will be required to complete 300 hours of unpaid community work.  I will make allowance for 100 of those hours to be completed by satisfactory completion of an equivalent number of hours of treatment with the treatment rehabilitation orders that I impose upon that order.

29You will be required to be the subject of supervision of the Department of Community Corrections during that period and you will be required to be assessed for and participate in treatment programs as directed in relation to drug abuse and mental health issues.

30

But for your pleas of guilty I would have sentenced you to 18 months imprisonment with a non-parole period of 12 months.  Take a seat,

Mr Barbaro.  I should say that in your case also I make orders for forfeiture and disposal of property in accordance with the drafts with which I have been provided.

31In your case, Mr Sovolos, would you stand please?  On Charge 1 on the indictment of trafficking in methylamphetamine I convict you and sentence you to imprisonment for a period of 216 days.  On Charge 2 of possessing an unregistered firearm I convict you and sentence you to imprisonment for a period of 30 days.

32On Charge 3 of handling stolen goods I convict you and sentence you to imprisonment for a period of 60 days.  On Charge 4 of theft I convict you and sentence you to imprisonment for a period of 90 days.  On Charge 5 of theft I convict you and sentence you to imprisonment for a period of 60 days.  All of those sentences will run concurrently.  The total effective sentence is 216 days and I declare in your case pre-sentence detention of 216 days as time to be reckoned as served on that sentence and to be deducted administratively from the sentence, which means you will not have any further time to serve.

33In addition I order that you be the subject of a community correction order for a period of two years with the additional conditions that you be under supervision for that period, that is supervision of the Department of Corrections, and that you be assessed for and participate in treatment and rehabilitation programs for drug abuse and mental health issues as directed.

34In your case also I make ancillary orders, one for the provision of a forensic sample.

35MR DEFTEROS:  I am just wondering if I could be heard on that matter?

36HIS HONOUR:  You want to be heard on that?

37MR DEFTEROS:  Yes, if I could momentarily?

38HIS HONOUR:  Yes.  Do you want to be heard now?

39MR DEFTEROS:  If that is convenient.

40HIS HONOUR:  Yes, go ahead.

41MR DEFTEROS:  The application that I spoke about on the previous occasion when Your Honour indicated ‑ ‑ ‑

42HIS HONOUR:  I had forgotten about it I am afraid.

43MR DEFTEROS:  You would think about the forensic sample order being made is still on foot.  There was a further hearing to take place this afternoon.  There was an administrative problem with my client.  He was left in the van for an hour and half waiting to be brought up to the Melbourne Magistrates Court.

44

As I understand it my learned friend has now been briefed in relation to that matter, and the further hearing of that matter is scheduled for tomorrow at

3 pm.  In the circumstances, Your Honour, what is sought is that a forensic sample be provided for the purposes of investigation in relation to an ongoing matter where my client has not been charged with any offence.

45What has happened in relation to the matter before you is that my client has been singled out and has been asked to provide - Your Honour has been asked to provide an order for his sample to be given up.  There hasn't been an application in relation to the others as I understand it.

46In the circumstances where this matter is still part heard where we have filed material and we have presented the case on behalf of my client I ask Your Honour not to make the order presently until the Magistrates matter is dealt with.  It is basically allowing my learned friend to seek and obtain an order through Your Honour circumventing the application that is still on foot in the process of being heard in the Magistrates' Court.

47HIS HONOUR:  I will just hear from Mr Devlin.  Mr Devlin, is Mr Sovolos being singled out for any particular reason or is he ‑ ‑ ‑

48MR DEVLIN:  No, Your Honour.  The reason why the order is only sought in relation to Mr Sovolos is that both Mr Barbaro and Mr Hoang have previously been profiled so there is no - excuse the pun - forensic purpose of getting a further sample.  In relation to my learned friend's submission which I thought we addressed on the last occasion is that first of all I, on behalf of the prosecution, didn't even know about a pending application in relation to a matter that Mr Sovolos is not even charged, albeit it is alleged that he's been involved in a very serious incident.

49That application is totally separate from this application.  The application here was made in relation to the seriousness of these offences and the public interest in obtaining a sample in relation to these offences.  What will happen in the Magistrates' Court tomorrow is totally irrelevant to Your Honour's consideration.

50An application may be granted on the evidence available in relation to that, totally separate from this matter.  So I seek the order.

51HIS HONOUR:  You press the application?

52MR DEVLIN:  Yes, based on the seriousness of these offences and we've got to confine themselves to these offences and the public interest in obtaining a sample in relation to the matter for Your Honour.

53HIS HONOUR:  Yes.  Mr Defteros, he is very persuasive.

54MR DEFTEROS:  Your Honour, it's a matter where my friend is able to have it both ways because he's appeared in the matter, he hasn't indicated what his position is going to be if Your Honour makes the order.  As I understand it this application is still very much on foot.  It's not in the public interest and not at this present point in time.

55HIS HONOUR:  Why isn't it in the public interest to grant the order in relation to these proceedings when they are very serious offences?

56MR DEFTEROS:  They are serious offences.  They do come under the section.  Can I hand Your Honour up - perhaps if I can refer Your Honour to some of the material that we have filed in the Magistrates' Court hearing?  There's a very interesting article from Dr Jeremy Gance on this very issue.

57HIS HONOUR:  With respect, what is the effect of that article?  I just wonder why it is relevant.

58MR DEFTEROS:  It's relevant in this way, because my client has been brought before the court now on three separate occasions for this proceeding to take place.

59HIS HONOUR:  When you say this proceeding are you talking about the Magistrates' Court proceedings?

60MR DEFTEROS:  Yes.

61HIS HONOUR:  Mr Devlin, I think with some force, points out that that's a totally separate proceeding.

62MR DEFTEROS:  It's a matter for Your Honour.  I've made my objection.

63HIS HONOUR:  Frankly I would ordinarily grant an order for offences as serious as this, and it seems to me that the public interest does require this order to be made, and if you couple that with the seriousness of the offending and the past history of the offender, then I think that it is entirely warranted and I propose to make the order.

64MR DEFTEROS:  If Your Honour please.

65HIS HONOUR:  Mr Sovolos, that will mean that you will be required to provide a forensic sample and the order sets out the time within which that needs to be provided and will require you to attend the Doncaster Police Station within that timeframe and submit to the provision of a scraping from the inside of your mouth.

66If you, when asked by an authorised officer at the police station to provide such a sample, if you do that then that is the end of the matter.  If you fail or refuse to provide the sample when requested by an authorised officer then that officer will also be authorised to take a blood sample and may use reasonable force.  I am quite sure you will not put the officer to that trouble when you attend the Doncaster Police Station.

67I also make the orders for forfeiture and disposal in accordance with the drafts with which I have been provided.  In your case, but for your pleas of guilty, I would have sentenced you to 16 months' imprisonment with a non-parole period of 12 months.  Take a seat please.

68Those orders will be drawn up and when they are drawn up if each of you would accompany my associate to your client so that they understand exactly what they are being asked to sign?  I have now signed those orders and they are in place.

69In the case of Mr Barbaro I think you can leave the dock, Mr Barbaro.  I imagine that the other two accused will have to go downstairs and be processed.

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