Director of Public Prosecutions v Stamenkovic
[2012] VCC 1171
•8 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-00622
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DRAGAN STAMENKOVIC |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 August 2012 | |
DATE OF SENTENCE: | 8 August 2012 | |
CASE MAY BE CITED AS: | DPP v Stamenkovic | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1171 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentencing – possession of drugs of dependence – 8 charges – 2 additonal summary charges – long history of offending – 12 months imprisonment with non-parole period of 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Singh | Office of Public Prosecutions |
| For the Accused | Mr R. Tait | Tait Lawyers |
HIS HONOUR:
1 Dragan Stamenkovic, you have pleaded guilty to 8 charges of possession of a drug of dependence. The maximum penalty for each of Charges 1-7 is five years' imprisonment. The maximum penalty to Charge 8, which concerns a small quantity of cannabis is five penalty units.
2 You have also pleaded guilty to two summary charges, one of dealing with property being the suspected proceeds of crime (Charge 18), which has a maximum penalty of two years' imprisonment and another of possessing a Schedule 8 poison (Charge 15) which has a maximum penalty to ten penalty units.
3 The circumstances of the offending were opened by the prosecutor. In short, you were apprehended early in the afternoon of 5 July 2010. You were outside a hotel returning to a car and in the company of another.
4 You had $3080 in cash on you (Charge 18). A bag was located in the boot of your car. In it were separate press seal bags. One contained two white tablets (nitrazepam, less than a gram) (Charge 1). Another had 0.1 gram of methylamphetamine (part of Charge 2). On the front seat of the car there was a box containing six tablets of diazepam wrapped in foil (Charge 3, 1.1 grams).
5 Police subsequently searched your premises. Ampoules of steroids were located in an unlocked safe under floorboards. These steroids were Stanozolol (Charge 4, 52.7 grams of mixed substance), clenbuterol (Charge 15, 3.4 grams) and testosterone and its derivatives (Charge 5, 41.3 grams).
6 In the same safe various quantities of methylamphetamine were found in plastic press sealed bags. The quantities were 0.8 grams, 1.3 grams, 22.3 grams, 0.04 grams and 0.03 grams (part of Charge 2). The purity of these drugs was so low it could not be determined.
7 A quantity of heroin, 1.3 grams (Charge 6) and 8.4 grams of nandrolone and its derivatives (Charge 7) was found in the same location.
8 In the bedroom the police located 1.7 grams of cannabis (Charge 8) and two further plastic seal bags containing methylamphetamine (0.04 grams with a 50 percent purity and 0 .6 grams with a 7 percent purity) (part of Charge 2).
9 You are entitled to benefit from pleading guilty. Such pleas save time, expense and the need for witnesses to give evidence. Your counsel made no submission concerning remorse. However, I was told this morning that pleas were entered at what should be regarded as an early stage and you must benefit as a result of entering pleas of guilty to at least most of the matters before me.
10 A psychological report from Mr Bernard Healey was tendered. It sets out your background. You began abusing drugs aged 13 and have used a variety of drugs including, cannabis, alcohol, amphetamine, ‘ice’, ecstasy, and benzodiazapines.
11 You are 42 years old. You have been in two relationships which have produced children. You have a 19 year old daughter from the first relationship and daughters aged 4 and 5 from your most recent relationship, which has now broken down it seems, due to your ex-partner suffering a bi-polar disorder. Your five year old daughter seems to suffer developmental delay.
12 You have a significant criminal history dating back to 1988. Your past offending includes driving offences, drug offending, including trafficking, dishonesty offending, including dealing with property suspected of being the proceeds of crime, reckless conduct endangering serious injury and possessing a firearm as a prohibited person. You have spent lengthy periods in prison, including a sentence of four years with a non-parole period of two years for accessory after the fact to murder. You have received substantial imprisonment for driving and drug offending.
13 You remained in custody for two days after your arrest on the current matters before the Parole Board cancelled your parole on 7 July 2010. There was a period of 10 months owing on parole.
14 You were not granted bail on the current matters until 7 September 2010. The Parole Board then released you on parole on 15 September 2010. You entered a rehabilitation unit on your release. The unit was in Warrnambool and, as I read the material, you remained there for three months.
15 Your parole was again cancelled on 12 January 2011, when you failed to attend an appointment, and you were not released until 2 September 2011 at which time you had completed your sentence.
16 On 27 December 2011 you committed further offences and were released on bail, however you failed to appear on these matters on 14 February 2012. These matters are to be heard in the Magistrates' Court tomorrow.
17 You also failed to appear on the current matters on 6 June 2012.
18 You were apprehended on 25 June 2012 but it seems likely that no charges will be laid against you concerning that arrest. When arrested on 25 June 2012, various warrants were executed. One such warrant concerned offending on 7 March 2010, the subject matter of that warrant concerns matters that are also listed for hearing in the Magistrates' Court tomorrow
19 The current offences were also committed whilst you were on bail and, as has already been noted, whilst on parole, accordingly, the sentences I pass must be served cumulatively unless I order otherwise. There has been considerable discussion this morning about how I .should approach sentencing, I expressed the view that the most lenient approach I could take would be to sentence you in a way in which I consider a magistrate might have sentenced you dealing with the current matters which, I consider, are well within the Magistrates' Court jurisdiction. Additionally, I have indicated that I propose to impose sentences which are particularly modest, perhaps too lenient in the circumstances but I will not make any order for concurrency.
20 The brief history that I have just described demonstrates a disregard for the law.
21 You have served a total of 46 days pre-sentence detention.
22 The prosecution submitted that you should be sentenced to imprisonment for between 12 and 18 months and that a non-parole period of between 12 and six months should be fixed.
23 Your counsel noted that drugs have presented what he referred to as an “overwhelming factor” in your life. He noted that you had only once received a “supervisory” court order. In 1991 you were released on a Community-based order, which you breached. Your counsel submitted that I should impose a short sentence of imprisonment, not exceeding three months, and release you on a Community Corrections Order. He argued that you need supervision and all the assistance you can get to enable you to remain drug-free. Imprisonment, he submitted, would only add to the risk of institutionalisation. Your criminal record notes that in early 2008 you were before the Melbourne Magistrates' Court for dishonesty and drug offending including breaching a suspended sentence. You were released on a further suspended sentence with no order being made on the breach. The record notes that, despite you being highly institutionalised, you were then making genuine efforts at rehabilitation, running a business, attending to your obligations as a father and ongoing treatment with Mr Lamberti. Mr Lamberti is a very well known drug counsellor. The suspended sentence that was imposed on the occasion I have just referred to was subsequently breached and the sentence restored.
24 In discussions on Monday I noted that if I adopted the submission made by your counsel it would be particularly lenient and would present a high risk of breaching which, in the circumstances, would almost certainly result in imprisonment.
25 To expedite matters, should I decide to take this course, but without suggesting any concluded view, I had you assessed. You were assessed as being unsuitable for very understandable reasons, principally your long history of non-compliance with Community Correctional Services. You told the assessor that your circumstances have now changed due to a positive relationship and a desire to lead a stable life for the benefit of your children. You said you would manage non-compliance by setting reminders on your mobile phone. You disclosed that you had been using drugs until recently incarcerated. I note you told Mr Healey that you had not used stimulant drugs since your remand in July. I interpret this as meaning that you have not used drugs generally. You were unable to provide a current address to the assessor, except to say it was in Heidelberg. You could not provide a telephone contact number or emergency contact.
26 As indicated in discussion, I have come to the firm view that it is not appropriate to impose a Community Corrections Order.
27 The sentences will be as follows:
28 Charge 1, you will be convicted and sentenced to one month's imprisonment.
29 Charge 2, you will be convicted and sentenced to two months' imprisonment. The total quantity of the substances containing methyl amphetamine is substantial however the purity is very low.
30 Charge 3, you will be convicted and sentenced to one month's imprisonment.
31 Charge 4, you will be convicted and sentenced to two months' imprisonment.
32 Charge 5, you will be convicted and sentenced to two months' imprisonment.
33 Charge 6, you will be convicted and sentenced to one month's imprisonment.
34 Charge 7, you will be convicted and sentenced to one month's imprisonment.
35 Charge 8, you will be convicted and fined $200.
36 Charge 15, the summary charge, you will be convicted and fined $100.
37 Charge 18, a summary charge, you will be convicted and sentenced to two months' imprisonment.
38 That makes for a total effective sentence of 12 months' imprisonment.
39 That means that I have the power to fix a non-parole period. I fix a non-parole period of six months, any lesser period would be inadequate, in my view. However, I am conscious of the fact that you run the risk of not being released on parole by the Parole Board. Release is, of course, a matter for the Parole Board and not for me, but I have structured the sentence in the way in which I have because I think it is correct, as Mr Tait submitted, that whatever can be done to encourage your rehabilitation needs to be done. It seems to me that that objective is best achieved by you being released into the community under some supervision and parole is the only mechanism appropriately available, particularly given that at the end of serving the non-parole period, if you continue as you have, you will be drug-free.
40 You have served 46 days pre-sentence detention. This period is to be reckoned as time already served pursuant to the sentence I have imposed.
41 Had you not pleaded guilty, I expect I would have sentenced you a total effective sentence of about 15 months' imprisonment with a non-parole period of about nine months.
42 I will sign the forfeiture and disposal orders that were drafted. Have I covered everything?
43 MR SINGH: Your Honour, just to make it abundantly clear, all those sentences Your Honour expanded during the course of your sentence are to be served cumulatively upon each other.
44 HIS HONOUR: They are, yes.
45 MR SINGH: Thank you.
46 HIS HONOUR: There are one each of those orders for the file and the others down to you, Mr Singh.
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