Director of Public Prosecutions v Stojanovski
[2017] VCC 1545
•12 October 2017
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00126
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT STOJANOVSKI |
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JUDGE: | Hampel | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 9 and 10 October 2017 | |
DATE OF SENTENCE: | 12 October 2017 | |
CASE MAY BE CITED AS: | DPP v Stojanovski | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1545 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Dickie | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J. Lavery | Adrian Paull Criminal Lawyers |
HER HONOUR:
1 Between 19 September 2013 and 19 January 2014 you, Robert Stojanovski were a party to an agreement with Viliam, or Bill, Petkovski, to assist him in the importation of border controlled drugs. You agreed to facilitate the delivery of drugs ordered by him from overseas by having them delivered to your address. During that period, two parcels were received by you, pursuant to that agreement and handed over to Mr Petkovski. A further five parcels, intended to be delivered to your address, were intercepted by authorities before they were delivered. The five intercepted parcels contained a total of 20 grams of pure MDMA and 58.1 grams of pure methamphetamine.
2 Three of the five intercepted parcels contained envelopes in which the MDMA, in powder form, was packaged. One package contained MDMA in tablet form. The final package contained methamphetamine in crystalline form, concealed inside two computer desktop hard drives.
3 Some of the packages were addressed to you, others were addressed to the previous owner of your house. Her name was used without her knowledge or consent.
4 An examination of your mobile telephone revealed messages passing between you and Mr Petkovski concerning collection of or checking for the arrival of parcels on various occasions between 19 September 2013 and 21 January 2014.
5 This then was the basis of the one rolled-up charge of importing a marketable quantity of border controlled drugs, to which you pleaded guilty on the day your trial was due to start.
6 The prosecution is not able to establish whether you were aware that the items which were intercepted before delivery to your address, were in the process of being delivered to you before interception. However it is accepted that those five items were imported pursuant to the agreement with you. Similarly, the prosecution is not able to establish with the two items delivered to you, whether they contained a border controlled drug, although it contends that it is likely they did. It puts its case on the basis of those first two deliveries marking the beginning of the agreement between you and Mr Petkovski for items containing border controlled drugs to be imported into Australia and sent to your address.
7
Police executed a search warrant at your home on 3 February 2014. When asked if you had any drugs in the house, you pointed the police to a small quantity of powder, which you described as less than half a point of ice or methamphetamine. You have pleaded guilty to one charge of possession of
a drug of dependence as a result and one which I take, in the circumstances, to be possession for personal use.
8 When interviewed, you told police that you had begun using ice in 2012 and had then used more frequently in the 18 months before your arrest. That was a period when you had, for the first time in your adult life, been unemployed. Mr Petkovski, who you had known for some time, was your dealer. You told police you had agreed to allow Mr Petkovski to send parcels to your address at his request or suggestion and that you had been rewarded by receiving a point of ice, for which normally you paid him $100, for free each time you had received and handed a package over to him. You said that you had received no other payment or reward. You told police that you had no part in ordering the drugs, paying for them, or even knowing when they had been ordered. Nor did you have knowledge, you said, of the type of drug or quantity ordered. You had assumed that all parcels contained ice or methamphetamine.
9 Following interview, you made a three page statement consistent with what you had said in your interview. It clearly implicated Mr Petkovski in the importation of the drugs and as the deviser of the plan.
10 Following the entry of your pleas of guilty, you have sworn that what you said in your three page statement, subject to one correction, which brings the commencement of the period back to the starting date on the indictment, namely 19 September 2013, as true and correct. You have given an undertaking to give evidence, if called upon to do so, in the trial of Mr Petkovski.
11
As it happened, you have not been called upon to give evidence as, following upon the announcement of your intention to plead guilty to the rolled-up charge of importation and the giving of the undertaking to give evidence, if called upon to do so in his trial, or the announcement of the giving of that undertaking,
Mr Petkovski pleaded guilty to a similar rolled-up charge in relation to the agreement. He also pleaded guilty to a further rolled-up charge in relation to
a course of conduct of importing, in circumstances that did not involve your participation, and a charge of trafficking in a drug of dependence.
12
Whilst therefore you were not called upon to honour the undertaking, it is accepted by the prosecution that the making of the inculpatory statement and the undertaking to give evidence in accordance with it was, or was likely to have been a significant factor which led to the resolution of the charges against
Mr Petkovski and the entry to the pleas of guilty by him. Not just to the charge in which you were also involved, but the other charges. The value of your undertaking is not diminished by the fact that you were not in fact called upon to give evidence. The very purpose which the giving of undertakings is designed to achieve, namely the implication of co-offenders, was achieved, but without the need for a trial.
13
As the prosecution rightly submitted, importation of a marketable quantity of
a border controlled substance is a serious offence. One measure of its seriousness is the maximum penalty prescribed by Parliament, namely 25 years' imprisonment, or a fine of $850,000. The seriousness of the offending can also be measured, in part, by reference to the quantity of drugs and the amount by which they exceeded the threshold for a marketable quantity. The amount of MDMA imported is 40 times the marketable quantity and the amount of methamphetamine imported was 29 times the marketable quantity.
14
Whilst on the way the prosecution case was put against you, it is conceded that you did not know the precise amounts imported, it is accepted that, given your relationship with Mr Petkovski , the methods employed by him, and your guilty plea, you would have been aware of the commercial aspect of the activity. In fact, it is, as the prosecution rightly pointed out, more by good luck than good management that, as it turned out, Mr Petkovski was importing the drugs in the quantities he did and not in larger quantities. You could have found yourself in a position where you were facing charges by agreeing to be, in effect, a post box, in the circumstances you did, of participation in the importation of
a commercial quantity of border controlled drugs. Had that been the case, you would have been facing a maximum sentence of life imprisonment.
15 This should be a salutary lesson to you and to others who lend themselves, or think of lending themselves to others’ criminal activity by acting as a post box, that the consequences can be very severe and out of your control.
16 It was common ground before me that a person who knowingly participates in an agreement to import border controlled drugs and in circumstances where pursuant to that agreement, a marketable quantity of drugs is in fact imported, will usually be required to serve a custodial sentence. As the prosecution again rightly pointed out, great social consequences flow from the movement of border controlled drugs into Australia and their distribution within the country. It is often difficult to detect drugs imported into the country and the ingenuity of those involved in this illicit trade sometimes appears to know no bounds. Law enforcement agencies and authorities are often forced to play catch-up and the balance which must be achieved between ensuring the freedoms and liberties of law-abiding citizens in a society and detecting the importation of border controlled drugs, and the balance between the avoidance of unnecessary impeding of everyday honest and legitimate private and personal cross-border transactions and imposing measures designed to detect the importation of illegal drugs, means that not all importations are, or are easily detected.
17 The needs of general deterrence must be given significant weight. The sentence for those caught engaged in the importation of border controlled substances must be sufficiently severe to deter those who might otherwise be tempted to become involved in such activities. The reward, whether it be financial or by way of free supply of drugs, must not outweigh the risk of punishment. The sentence must be sufficient to deter people or to make people think very seriously about taking the risk, or whether taking the risk is worth it.
18 You were 37 years old at the time of this offending. That is well old enough to know exactly what you were doing and that it was wrong. In fact, well old enough to know the dangers of ice use and one would have hoped, given your history, sensible enough to resist the temptation to start using it when you were of mature adult years.
19 You got to the age of 37 without, so far as the prosecution could ascertain, having previously been before a court. I was told in the course of the plea by your counsel that you believe that you were once convicted for shoplifting, although there is no record of that. It is, I consider, to your credit that you have volunteered that and that that was placed before me, despite the absence of evidence to that effect.
20 You had, up until your mid-30s, a good and steady employment record. You completed Year 12, worked for 14 years at Ford and a further five years at BlueScope Steel. It was towards the end of your employment at BlueScope in 2012 and during the 18 months of unemployment following that, that you were using ice and during the period of unemployment that this offending occurred.
21
Since being raided, arrested, and questioned, you have completed
a Certificate III in Construction and you are in steady employment now as a construction labourer. You have been with the one employer since June 2015 and have recently been upgraded to full-time employment, permanent, from full-time casual.
22
I am told that your employer requires its employees to submit to random drug testing. I am also told that, consistently with your instructions, that you have ceased ice use since this offending was detected. You have not returned
a positive result to any random workplace test. Your work attendance record has obviously also been good, as is evidenced by your securing full-time permanent employment after two years of casual engagement. Again, that points to a life as currently led, not affected by the use of ice.
23 At the time the offending, you were living in your own home. However, it would appear, the period of unemployment led to your struggling to keep up your mortgage payments and you were ultimately forced to sell your house. You have returned home to live with your parents. Again, this indicates the past steady work history to which I have referred and it also indicates a responsibility in respect of managing your financial affairs and making sensible decisions.
24 I accept that at the age of 35, to have suddenly found yourself unemployed, having been in steady but semi-skilled employment since leaving school and in a community where manufacturing jobs suddenly were in very short supply, may well have contributed to your finding yourself engaged in behaviour that is otherwise inconsistent with the way it appears you had lived your life before then and the way you have lived your life since detection.
25 Your past and now current employment history I accept as a positive rehabilitative factor counting in your favour.
26 The last intercepted delivery to you was in late January 2014. The warrant was executed at your home on 3 February 2014 and you were interviewed and the admissions to which I have already referred were made on that day. Yet it was not until two and a half years later that you were charged. This is an inexcusable and unacceptable delay. Having regard to the fact that you made admissions, it would have been clear to you from the time of interview that you were going to be charged and would have to face a sentencing hearing. Yours is not a situation where a person might live in the hope that charges might not be laid, or that even if they were, they might not result in guilty verdicts.
27 Therefore, the unfairness of having this matter unresolved because of this inexcusable delay on the part of the investigating authorities to lay charges, properly, in my view, counts as an oppression which should and does also reduce the sentence that otherwise would have been appropriate.
28
Having expressed that criticism of the delay in laying the charges, I also take into account that you have used the time between the arrest and questioning, and the sentencing today, well. As I have already noted, since you were detected, you engaged in some vocational training and obtained your
Certificate III qualification. You secured employment in the construction industry and again, consistently with that past history of steady employment, have again impressed one employer, so as to have had stability of employment since 2015 and you have made the transition with that employer from casual to permanent employment.
29 I take into account also your pleas of guilty. Although ultimately the matter did not resolve until the first day the trial, I note that in addition to the admissions that you had made when interviewed, the statement you made thereafter, that there were negotiations to resolve the matter at the time it was wending its way through the Magistrates’ Court. Discussions were inconclusive at that stage and it is not clear to me whether it was the prosecution or your then legal advisers who failed to follow through on the offer or the counteroffer that had been exchanged, in an attempt to bring negotiations to a conclusion. And as it turned out, it was not until just before trial and with a change of legal representatives for you that the discussions were reinvigorated and resulted in the very sensible resolution which was made in respect of the charges and the giving of the undertaking to give evidence in accordance with your statement, being offered and accepted.
30 Not only does your guilty plea therefore have utilitarian value, but the admissions, the discussions from an early stage after being charged, with a view to resolution of the matter and the time at which the settlement discussions were first entered into, that is, as the matter was going through the Magistrates' Court, together with the offer or the undertaking to give evidence, are all, in my view, positive indications of genuine remorse, an acceptance of responsibility and an attempt to make good. They, coupled with the evidence of your cessation of ice use and your return to gainful employment, all point to a positive change in your attitudes and behaviour since detection and therefore the guilty plea moves far along a spectrum from one which is nothing other than a bare acknowledgement of the strength of the prosecution case, or an acceptance of the inevitable on the first day of trial and I give it weight accordingly.
31 These matters too therefore confirm the other evidence that you have good prospects for rehabilitation.
32 I am satisfied that, if these were the only mitigatory matters, they, in combination with the characterisation of your role, that is, as a relatively lower level role in this offending, would have pointed to a characterisation of offending in the low to mid-range of seriousness, but despite that characterisation, in my view, your circumstances and your role in the offending, still would warranted the imposition of a term of imprisonment, with a component immediately served.
33 However, in my view this is a case where the combination of your admissions, the statement you made to the police at the time of interview, acknowledging your role and that of your co-offender and the undertaking to give evidence, leads to a different result. Whilst the gravity of the offending warrants the imposition of a term of imprisonment, I am satisfied that in the circumstances, it is not necessary to require you to serve any part of that before being released upon a recognizance to be of good behaviour.
34 The high public policy needs of encouraging offenders, not only to admit their own guilt, but to implicate co-offenders, and when I say "implicate", I mean not just by making admissions in respect of their role, but being prepared to give evidence against them, in my view, must weigh heavily in the balance. In this case, it outweighs the need to impose a term of imprisonment with a component immediately served.
35 So far as the charge of possession of a small amount of ice is concerned, I see no reason to make any order, other than one of convict and discharge.
36 Could you now please stand.
37
Robert Stojanovski, on the charge of importation of a marketable quantity of
a border controlled drug, you are convicted and sentenced to be imprisoned for a period of two years and six months.
38 I direct that you be released forthwith on a recognizance to be of good behaviour, fixed in the sum of $5,000.
39 I declare, pursuant to s.6AAA of the Victoria Sentencing Act 1991 (Vic) that, but your pleas of guilty, I would have sentenced you to a term of imprisonment of four years and I would have fixed a non-parole period of two years.
40 Had you pleaded guilty, but not given the undertaking to give evidence against your co-accused, I would have sentenced you to a term of imprisonment of three years and I would have directed that you serve a period of 18 months, before being released on recognizance to be of good behaviour.
41 I do not need to make a declaration, do I, Mr Dickie, about the date of commencement of sentence? That is only if there is time immediately served?
42 MR DICKIE: Your Honour, that is no doubt right.
43 HER HONOUR: I will do it if you like, for - - -
44 MR DICKIE: You could out of an abundance of caution, Your Honour.
45 HER HONOUR: Out of an abundance of caution.
46 MR DICKIE: Your Honour - - -
47 HER HONOUR: All right, I declare that the sentence commences today, but that you are released immediately upon that recognizance.
48 MR DICKIE: Your Honour, in terms of the period of the recognizance, I'm not sure if Your Honour specified how long Mr - - -
49 HER HONOUR: No, sorry, I did not. The period of the recognizance is three years.
50 MR DICKIE: Yes, thank you, Your Honour.
51 HER HONOUR: Sorry, two - - -
52 MR DICKIE: Two years and six months.
53 HER HONOUR: Two years and six months, I beg your pardon, yes, but - - -
54 MR DICKIE: So it's a sentence of imprisonment for two years and six months, to be released forthwith, - - -
55 HER HONOUR: On a - - -
56 MR DICKIE: - - - to be of good behaviour for that period of - - -
57 HER HONOUR: For a period of two years and six months.
58 MR DICKIE: Yes, thank you, Your Honour.
59 HER HONOUR: And the sum of the recognizance fixed at $5,000. Yes, thanks, Mr Dickie.
60 MR DICKIE: And, Your Honour, despite indicating that I was content, Your Honour, with how Your Honour was proposing to structure the declaration, I'm just wondering if I need a second to ensure that's right, Your Honour.
61 HER HONOUR: Yes.
62 MR DICKIE: Your Honour's indicate that, but for - if there had been no plea of guilty, the declaration pursuant to s.6AAA, the sentence would have been four years, with a non-parole period of two years. And then, Your Honour, had you pleaded guilty - - -
63 HER HONOUR: Had he pleaded guilty but not given the undertaking?
64 MR DICKIE: But not given the undertaking?
65 HER HONOUR: Yes.
66 MR DICKIE: The undertaking. That is right, it would have been a lesser period, Your Honour, that's - - -
67 HER HONOUR: Would have been a lesser period than the term I would have imposed, had he been found guilty by a jury.
68 MR DICKIE: I see, Your Honour, of course, that's correct, Your Honour.
69 HER HONOUR: So that is - - -
70 MR DICKIE: Yes, I understand that, Your Honour.
71 HER HONOUR: But - - -
72 MR DICKIE: I get - - -
73 HER HONOUR: But that is why I ended up doing it that way, because it seemed to me to be - - -
74 MR DICKIE: And, Your Honour, I think it's just me being slow on the uptake, but I understand it now.
75 HER HONOUR: More logical.
76 MR DICKIE: Yes, Your Honour.
77 HER HONOUR: Yes.
78 MR DICKIE: And I understand the recognizance release order has been prepared and - - -
79 HER HONOUR: All right, thank you. Take a seat, Mr Stojanovski, while we just formalise the paperwork.
80 MR DICKIE: Yes, that seems fine, Your Honour, and I'm just wondering if it could be printed off, so that Mr Stojanovski could sign the order.
81 HER HONOUR: Yes, certainly.
82 MR DICKIE: And if Your Honour could explain to Mr Stojanovski the consequences of not complying with the order.
83 HER HONOUR: Yes, thank you. I do not think I need to spell it out in my reasons for the effect of the - - -
84 MR DICKIE: Yes, Your Honour, in fact, often, Your Honour - - -
85 HER HONOUR: - - - declarations I have made, is that if the offer of co-operation were not honoured, that would have added a further six months to the head sentence, but required 18 months of immediate imprisonment.
86 MR DICKIE: Yes, Your Honour, and in terms of the non-compliance of the recognizance release order, if Mr Stojanovski, of course, commits a further offence over that period of two years and six months, he can be brought back before the court and re-sentenced in relation to the order that Your Honour's imposed today.
87 HER HONOUR: Yes.
88 MR DICKIE: So, I just raise that out of an abundance of caution, but no doubt my learned friend has explained that to Mr Stojanovski and - - -
89 HER HONOUR: Yes, and I must do so too. I am sorry, could you stand again please, Mr Stojanovski.
90 The effect of what I am doing, is to impose a term of imprisonment on you of two and a half years, but you are to be released, provided you give a promise to be of good behaviour for that period of two and a half years and I have fixed the condition of your promise in the sum of $5,000. If you commit another offence during the period of two and a half years whilst you are on this recognizance to be of good behaviour, you can be brought back and you are likely to be brought back before me. it is likely that the recognizance amount of $5,000 will be forfeited and you would be re-sentenced for the original offending and that may well lead to the imposition of that term of imprisonment, or part of it, which had been held in suspense because of your promise to be of good behaviour. Do you understand that?
91 OFFENDER: Yes, I do.
92 HER HONOUR: Have I explained that correctly, Mr Dickie?
93 MR DICKIE: Yes, Your Honour.
94 HER HONOUR: Thank you. Thanks, you can take a seat.
95 I have signed the recognizance. Can you just take that down, Mr Lavery, to your client, have him sign the acknowledgement.
96 MR LAVERY: Yes, Your Honour.
97 HER HONOUR: All right, that is done.
98 MR DICKIE: Yes, thank you, Your Honour, sorry for that time.
99 HER HONOUR: No, no, no, I said the other day and I will say it again, thank you all for your assistance. It was a very sensible resolution and clearly had the desired effect in relation to precipitating a resolution of Mr Petkovski's matter.
100 MR DICKIE: Yes, Your Honour.
101 HER HONOUR: So thank you. As soon as copies of the undertaking have been made, everyone is free to leave.
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