Director of Public Prosecutions v Thallas
[2024] VCC 1795
•21 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01557
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KOSTA THALLAS |
---
JUDGE: | HIS HONOUR JUDGE ROZEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 06 September 2024 | |
DATE OF SENTENCE: | 21 October 2024 | |
CASE MAY BE CITED AS: | DPP v Thallas | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1795 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Trafficking large commercial quantity of a drug of dependence – Possession of a drug of dependence – Possession of explosive substance – 1,4-Butanediol – Verdins - Lack of significant prior criminal history - Lack of any subsequent offending – Relative youth – Rehabilitation reasonable – Standard sentence – Serious drug offender - Pre-Sentence Detention.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:Obian v The Queen [2023] VSCA 18; Gregory v The Queen [2017] VSCA 151; McCabe v The King [2023] VSCA 329; DPP v Fatho [2019] VSCA 311; Sharbell v The Queen [2018] VSCA 324; R v Verdins [2007] VSCA 102; Gayed v The Queen [2021] VSCA 141; Al-Dimachki v The Queen [2021] VSCA 98; Arici v The Queen [2019] VSCA 228; Ellis v The Queen [2018] VSCA 221.
Sentence: 4 years’ 1 month imprisonment - Fine of $500 – Non-parole period of 2 years’ and 6 months’ - s 6AAA declaration - 6 years’ - Non-parole period of 4 years’ 2 months’ – s 89DI declaration - Serious Drug Offender.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N. Simpson | Office of Public Prosecutions |
| For the Accused | Mr G. Traczyk | Aloe and Co Lawyers and Solicitors |
HIS HONOUR:
1Kosta Thallas, you have pleaded guilty to the following offences:
(a) One charge of trafficking in a drug of dependence in a large commercial quantity contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘Drugs Act’), which attracts a maximum penalty of life imprisonment;
(b) One charge of possession of a drug of dependence contrary to s 73(1) of the Drugs Act, which attracts a maximum penalty of 1 year’s imprisonment;[1]
(c) One charge of possession of an explosive substance without lawful excuse contrary to s 317(4) of the Crimes Act 1958 (Vic) (‘Crimes Act’), which attracts a maximum penalty of 5 years’ imprisonment.
[1] The prosecution accepts that a finding is open that the 0.2 g of cocaine you possessed was for your personal use – see s 73(1)(b) of the Drugs Act.
2You have also pleaded guilty to one summary charge of dealing with property suspected of being proceeds of crime, contrary to section 195 of the Crimes Act, which attracts a maximum penalty of 2 years’ imprisonment.
3You are to be sentenced based on the Summary of Prosecution Opening for Plea dated 12 March 2024.[2] This is an agreed document upon which the following summary is in turn based.
[2] Exhibit P1.
Summary of Offending
4In 2022, the Victorian Police Major Drug Squad commenced an operation in respect of the importation of illicit substances into Melbourne through Australia Post. Various search warrants were executed as part of this investigation.
5On 27 December 2022, a search warrant was executed at your home in Baronial Way, Craigieburn.
6Located during the execution of the search warrant and seized were:
(a) One zip lock bag containing white powder located on a computer desk in bedroom 2 (Charge 2: Possess drug of dependence, namely cocaine).
(b) In a storage area under the first-floor stairs, a large plastic bag containing fireworks of various sizes and types (Charge 3: Possess explosive substance).
(c) A bottle labelled “Moco Youth Code Ferment Pressence” containing a liquid substance, in the cupboard above the range hood (Charge 1: Traffick in a large commercial quantity of 1,4 Butanediol).
(d) A substantial quantity of cash ($5,150) located in the second top drawer of the kitchen (Summary Charge 7: Deal with property suspected of being proceeds of crime).
(e) A blue jerry can 5L containing viscous liquid in the garage (Charge 1: Traffick in a large commercial quantity of 1,4 Butanediol).
(f) Two white polystyrene boxes on the floor of the carport, containing 63 bottles labelled “Moco Youth Code Ferment Pressence”. Inside of the bottles was a liquid substance (Charge 1: Traffick in a large commercial quantity of 1,4 Butanediol).
7You provided police the PIN code to your mobile phone which revealed:
(a) An image of fireworks captioned “Big box 1 left $1700, it’s a pack not separated, pick up today $1600” dated 13 December 2022.
(b) Chat messages on the applications “Threema”, “Facebook Messenger” and “Snapchat” which were consistent with drug trafficking 1,4 Butanediol:
(i)Messages on Snapchat dated 9 December 2022, where the offender stated “Ay”, “Do you need Ls”, “600 a L”.
(ii)Chat dated 13 December 2022 where you stated, “And how much did u want”, “How much did he tell u”, “$450??”. The other user responded “$350”, “That’s what he been charging me I get 1 ever (sic) week or so”. You replied “Ok”, “Come”.
(iii)Chat from approximately 23 December 2022, where you stated, “if anyone is thirsty lmk, I do u cheap”, “very cheap @500”.
8CCTV footage retrieved from Baronial Way, Craigieburn shows:
(a) On 12 December 2022, you are carrying a blue jerry can into the property, this being similar to the jerry can seized by police and found to contain 1,4 Butanediol.
(b) On 12 and 13 December 2022, you are seen to be walking outside the front of the property with a plastic bag containing an unknown item and placing it in the front passenger side of an unknown vehicle, before walking back inside.
(c) On 15 December 2022, you are seen walking to your mailbox and putting a dark coloured bottle inside. The bottle was of a similar appearance to those seized in the search.
Further Investigation
9On 4 January 2023, a forensic analysis was completed on the fireworks located in the search. Of the 35 items located, 22 items were found to contain an explosive substance. 20 of those items were considered explosive substances under the Crimes Act (Charge 3: Possess explosive substance).
10DNA swabs were taken from the caps of two plastic bottles located in the polystyrene boxes. The result of DNA analysis was that it was 100 billion times more likely you were a contributor to the DNA result.
11Overall, you trafficked a large commercial quantity of 1,4 Butanediol from 9 December 2022 to 27 December 2022, in that you possessed 37kg of 1,4 Butanediol for sale at your residence.
12You made a no comment record of interview.
Objective gravity
13Charge 1 is the most serious offence. It carries a maximum sentence of life imprisonment.
141,4-Butanediol is also known as ‘1,4-BD’. In Obian v The Queen,[3] MacAulay JA explained that:
1,4-BD is a chemical solvent. It has a number of industrial uses. One is that, when diluted with water, it may be used as a domestic or commercial cleaning product. Aside from industrial uses, when flavoured (to disguise its unpleasant taste), it may also be ingested orally in which case the human body will naturally metabolise it to become gamma-hydroxybutyrate, more commonly known as GHB. GHB is colloquially known as ‘the party drug’ or ‘the date rape drug’. When consumed, it can induce euphoria or have a sedating effect.[4]
[3] [2023] VSCA 18 (‘Obian’).
[4] Ibid, 28 [115].
15The Court of Appeal in Obian accepted that ‘the potential harm of 1,4-BD to the community was also relevant to assessing the criminality involved’.[5] It noted that ‘[e]vidence before the sentencing judge showed 1,4-BD had become a dangerous substitute for GHB, effectively replacing GHB from as early as 2014, and posed a particular risk of lethal overdose due to the delay in 1,4-BD achieving its desired effect’.[6] While I don’t have that evidence before me, I take into account the effects of the drug as described in Obian.
[5] Ibid, 80-1 [380].
[6] Ibid.
16The sentencing regime for drug trafficking offences is quantity based, thus, quantity is a highly relevant consideration in sentencing for such offences.[7] Other important indicators of the seriousness of a given example of offending include the offender’s role in the trafficking, the duration of the offending and the motivation for the offender’s involvement.[8]
[7] Gregory v The Queen [2017] VSCA 151, 6-7 [23]-[24] (‘Gregory’).
[8] Ibid, 7 [24].
17You have pleaded guilty to trafficking 37 kg of 1-4BD which is a little less than twice the large commercial quantity. This is a significant quantity of this drug.
18Your offending occurred over a period of 18 days. It appears that you were engaged in this activity on your own – you were not part of a larger enterprise.
19Your motivation was clear. During your assessment by Dr Dawson, psychologist, you were asked about the circumstances of your offending. Dr Dawson’s report records the following:
In relation to the offences, Mr Thallos [sic.] denied any particular financial strain or pressure that led to his actions, stating instead, “if there’s money to be made, I’ll do it”. He reported that he became “greedy” and experienced a “sense of achievement” from making money.[9]
[9] Confidential Psychological Report of Kosta Thallos written by Dr Dawson dated 10 September 2024, 5-6 [60] (‘Exhibit D1’).
20It appears to be tolerably clear that the principal motivation for your offending was financial gain. You were lured by the possibility of making easy money without having to work particularly hard. This is common to many drug traffickers who come before the courts.
21Your counsel Mr Traczyk urged me to take into account the modest anticipated financial reward that you stood to receive from this trafficking. He submitted that this was between $13,300 and $22,800 based on the agreed fact that you had offered to sell a litre of 1-4BD for between $350 and $600.
22Mr Traczyk relied on the observations of the Court of Appeal in the case of Maxwell that ‘[i]n addition to the weight of the drugs imported (or trafficked), the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence’.[10] The court went on to note that ‘[o]ther things being equal, an importation (or trafficking) which is undertaken because it will bring – or is expected to bring – a large financial reward to the offender will be more serious than one where the expected reward is small or non-existent’.[11]
[10] DPP vMaxwell [2013] VSCA 50, 6 [21].
[11] Ibid. See also McCabe v The King [2023] VSCA 329 at 7 [27].
23In the more recent decision of DPP v Fatho (‘Fatho’), the Court of Appeal referred to ‘two distinct lines of authority’ concerning sentencing for trafficking offences. The first concerned lower sentences being imposed for dealings in drugs such as 1,4-BD and GBL compared to sentences imposed in cases involving ‘dealings in equivalent quantities of other drugs such as heroin and cocaine’.[12] The second line of authority commenced with Gregory v DPP[13] and has seen sentences imposed for CQ trafficking increase considerably with a corresponding increase in LCQ trafficking cases.[14]
[12] [2019] VSCA 311, 16 [50].
[13] [2017] VSCA 151.
[14] Fatho (n 12), 16 [50].
24As the court in Fatho noted, the two lines of authority were considered together in Sharbell v The Queen in which the Court of Appeal observed that ‘past sentences provide very little guidance to future sentencing in this area’.[15] In particular, I note that the Court in Fatho while increasing a sentence of 4 years and 6 months to 8 years, made it clear that the line of authority commencing with Gregory is applicable to all trafficking cases including 1,4-BD.[16] Fatho had pleaded guilty to trafficking 700 times the CQ.[17]
[15] [2018] VSCA 324, 18 [65].
[16] Fatho (n 12), 22 [72].
[17] At the time there was no LCQ for 1,4-BD. The quantity trafficked in Fatho was 1,402 kg which, under the current law, would be 70 times the LCQ.
25Having regard to all of the relevant considerations including the quantity of the drugs and the relatively modest anticipated reward, I assess yours as a low to mid-range instance of this serious offence.
26Charge 2 is a low level example of the offence of possession of a drug of dependence having regard to the quantity of cocaine.
27There is little information about Charge 3 before the court. I cannot determine with any certainty why you had the fireworks in your possession. The prosecution submits that, based on ‘the Snapchat messages located on the offender’s phone’ the court can infer that you ‘possessed these with the intention of selling them’. This is said to aggravate the offending.[18]
[18] Office of Public Prosecutions, ‘Prosecution Submissions on Sentence’, Submissions in DPP v Thallas, CR-23-01557, 24 July 2024, 6 [24].
28However, the agreed Opening merely refers to messages ‘between the offender and others in respect of the sale of the fireworks’ at paragraph 7(a).[19] There is no detail in the agreed facts about these messages and I cannot, in these circumstances, be satisfied beyond reasonable doubt that you possessed the fireworks for the purpose of sale.
[19] Exhibit P2 (n 2) 4 [10(c)].
29In these circumstances, I conclude that this was relatively low level offending.
30Finally, I consider that the summary charge is for a low-mid range instance of this offending. The amount of money is not large compared to other cases but I can infer that it was likely to be related to your drug dealing.
Moral Culpability
31As noted, you denied that there was any financial strain or pressure placed on you that caused you to begin trafficking. Rather, you said ‘if there is money to be made, I’ll do it’. You also felt a ‘sense of achievement’ from making money.
32Dr Dawson identified that you have difficulties with loneliness, therefore, your illegal activity was a way of gaining social connection and status.[20]
[20] Exhibit D1 (n 9) 5-6 [60].
33As discussed later in these reasons, you were struggling with your own addiction to various drugs of dependence. This included daily ingestion of cocaine which you told Dr Dawson increased your energy levels.
34Dr Dawson concluded that your capacity to engage in rational decision-making at the time of your offending was ‘likely impaired due to [your] daily substance use and overwhelming need for social connection’.[21] It was not suggested by your counsel that this reduced your moral culpability.
[21] Ibid 12 [124].
35Your moral culpability for the offending was considerable.
Personal Circumstances
36You were 25 years old at the time of the offending and are now 27 years old. You have a limited criminal history with minor related offending. You were convicted of possessing drugs of dependence, being GHB, cannabis and MDMA in 2018 and faced a further possession of cannabis charge in 2016.
37According to what you told Dr Dawson, your parents worked whilst you grew up and you had ‘everything [you] needed’. Their relationship was precarious, with numerous situations where you witnessed family violence being perpetrated by your father against your mother. Physical chastisement with household implements was used as a form of discipline against you, with your father being the main disciplinarian.
38You were close with both your mother and father growing up, and your relationship with them was ‘good until recently’. You told Dr Dawson that you recently discovered that your mother was unfaithful and she wouldn’t tell you the whole truth about this. You have had fallouts with your mother in the past, but this occasion has made it more difficult to repair the relationship between the two of you.
39Your relationship with your father growing up was more aligned with friendship, rather than a parental and nurturing figure. The relationship with your father has deteriorated since your parent’s separation.
40You currently have limited family support, except for one cousin who has been assisting with renting your property.
41You are one of two children, with a half-sister, with whom you had a normal sibling relationship. However you have not seen her since you were 14 as she had a poor relationship with your father. You have tried to mend this relationship with her but she has refused.
42You report that at age 14 you were sexually assaulted by an adult female unknown to you. You and your friends had met her at a public place where she provided you all with alcohol. You reported that she ‘touched [you] up’ and performed oral sex on you. You did not disclose this to your family as you were unsure of how to think about the situation at the time. As an adult, you have had time to reflect on the situation and realise now that people would have cared, had you disclosed the information.
43You had poor attendance at school, however this was not due to any learning difficulties with school work, rather you ‘didn’t want to do it’. You were expelled from school in Year 9 due to being in possession of cannabis on the school grounds. Changing schools exacerbated your poor attendance as you had difficulty fitting in with your peers.
44You were not able to complete your VCE due to your low attendance but you were able to gain a high school VCAL in Hospitality.
45After completing high school, you immediately began working full time, working in a fish and chip shop for two years and then a restaurant for three years. After this you commenced an apprenticeship in roofing, but were unable to complete this as the employer was not paying you the correct amount.
46You were born with scoliosis and had to have spinal surgery at the age of 22 but were able to return to work within 6 months.
47You have been working as a sales representative for two years at an industrial supplies company, where you had good relationships with your colleagues and employers.
Mental Health and Substance Use
48In 2017, when you were 20, you experienced a drug induced psychosis due to taking methamphetamine. Your family and police contacted the Youth Access Team and you were voluntarily placed in a youth psychiatric ward for one month.
49You were provided with risperidone, an anti-psychotic drug for the following six months and referred to a psychologist. The referral was finished after six months due to your lack of engagement.
50You reported to Dr Dawson that you have struggled with your mental health throughout your life, with periods of hopelessness and reduced motivation. You self-medicated through these periods with illicit substances and ‘self-talk’.
51You have been using cannabis on and off since your adolescence. Your cannabis use escalated when your back pain became more intense, as you used it to self-medicate because your GP was strict with opioids.
52When you were 19, your then partner and you separated. This occurred the same week that your grandmother passed away. As a result, you started using ‘ICE’ and ‘never looked back’’. You were smoking it daily to avoid any come down effects or withdrawals. It would affect your ability to work but you would continue to work where the labour was needed.
53In 2019 you made a decision to cease using ‘ICE’ as it was ‘ruining your life’. However, you began to use cocaine and GHB recreationally. Your cocaine use has become more problematic over the past two years and you told Dr Dawson that ‘[you] are replacing one drug with another’. You use cocaine daily as it increases your energy levels and helps you to be more productive. You use cannabis in order to counteract these effects and to aid your sleep.
54You told Dr Dawson that you wished to cease all drug use but that you have felt like you can’t, due to the lack of support you have around you.
55Dr Dawson opines that you present with an unstable sense of self, moods and relationships consistent with Borderline Personality Disorder. Dr Dawson notes that your psychopathology and limited coping milieu have undermined your ability to think clearly, respond calmly and exercise appropriate judgment.[22]
[22] Ibid 12 [121].
56Dr Dawson also observes that you suffer from Cannabis and Stimulant Use Disorders and that you would have met the criteria for these disorders during your offending.
57Dr Dawson considers that imprisonment will weigh more heavily on you than it would on a person without your mental health concerns.[23] As the prosecution concedes, this enlivens limb 5 of the Verdins principles.[24] I have moderated the length of both your head sentence and non-parole period accordingly.
[23] Ibid 14 [136].
[24] R v Verdins [2007] VSCA 102.
Matters in Mitigation
58Your counsel relied on the following matters:
(a) Your early plea of guilty;
(b) Your lack of significant prior criminal history;
(c) Your lack of any subsequent offending; and
(d) Your relative youth.[25]
[25] Aloe and Co Lawyers and Solicitors, ‘Defence Submissions on Plea’, Submissions in DPP v Thallas, CR-23-01557, 10 June 2024, 3 [16].
59Of these, I consider that the most significant is your plea of guilty which I accept was entered at an early stage. Your plea is an indication of your acceptance of responsibility for your offending and some evidence of remorse.
60It has a considerable utilitarian value, as it saves prosecution and court resources and relieves witnesses of the anxiety and inconvenience of giving evidence at your trial.
61I have also taken into account your age. While you are not a youthful offender, you have your entire life ahead of you. The promotion of your rehabilitation is an important sentencing consideration that I have sought to achieve in setting both your head sentence and your non parole period.
Prospects of Rehabilitation
62The court received character references from your friends and employers Sean Dennis, Enis Rezaki, Michael Nguyen and Cory Andreula.
63Each of these people are aware of these charges and yet speak highly of your character. For example, Mr Andreula, who has known you for more than half of your life, has faith that you can learn from this experience and be a valuable and contributing member of society. These supports will be important to you in the years ahead and they suggest to me that you have some hope for the future. Mr Rezaki considers you to be genuinely remorseful.
64Dr Dawson assesses your risk of re-offending as low to moderate taking into account your limited criminal history, lack of entrenched criminal attitudes and age.[26] The primary risk factors are your untreated mental health issues and your substance use. Dr Dawson notes as a positive feature that you are prepared to engage in treatment.
[26] Exhibit D1 (n 9) 11 [110].
65I consider that, if you are treated for your related mental health and drug disorders, your prospects of rehabilitation are at least reasonable.
Sentencing Principles
66The offence of trafficking in a large commercial quantity of a drug of dependence is a category one offence. A court must impose a term of imprisonment other than one combined with a CCO.[27]
[27] Sentencing Act 1991 (Vic) s 5(2G)
67The ‘standard sentence’ for the offence is imprisonment for 16 years. This is the sentence applicable to a notional mid-range instance of the offence having regard only to objective considerations.
68In sentencing you, I must have regard to this standard sentence as one of a range of considerations. It is a legislative guidepost in the same way as the maximum penalty is.
69Upon conviction for Charge 1, I must declare you to be a ‘serious drug offender’.[28]
[28] Ibid s 89DI.
70General deterrence is of primary importance as a sentencing principle in relation to drug trafficking offending. Specific deterrence, denunciation and rehabilitation are the other relevant sentencing purposes.
71I have considered some cases with features similar to yours.[29] The cases involve a wide range of circumstances. Ellis, a case relied upon by your counsel, involved trafficking in a commercial quantity of 1,4-Butanediol (3.5kg). The Court of Appeal reviewed a range of earlier sentences in such cases and observed that ‘sentences ranged from 2½ years to 5 years’ imprisonment’.[30]
[29] Gayed v The Queen [2021] VSCA 141; Al-Dimachki v The Queen [2021] VSCA 98; Arici v The Queen [2019] VSCA 228; DPP v Fatho [2019] VSCA 311; Ellis v The Queen [2018] VSCA 221 (‘Ellis’).
[30] Ellis (n 30), 7 [29].
72In the very recent case of DPP v Richardson,[31] the Court of Appeal left undisturbed a sentence of 4 years’ imprisonment for attempted trafficking of a large commercial quantity of 1,4-BD. The offender, who was 35 years old, had attempted to traffic 100 kg of the drug, five times the LCQ. The offender had prior convictions for drug trafficking and was on parole at the time of the offending. He also had a number of important matters in mitigation including an acquired brain injury. The Court of Appeal characterised the sentence imposed as appropriately merciful.
[31] [2023] VSCA 241.
73I have considered these cases. I have also taken into account what the Court of Appeal said in Gregory (a case involving trafficking of a commercial quantity of a drug of dependence) about the need for a corresponding increase in sentences for large commercial quantity trafficking.[32]
[32] Gregory (n 13).
74However, ultimately such cases are of limited utility as this Court is required to impose a sentence that reflects the unique circumstances of your case.
75I have imposed a sentence on Charge 1 which is less than the standard sentence taking into account the matters of mitigation to which I have referred earlier.
Orders
76On Charge 1, trafficking in a drug of dependence in a large commercial quantity, you are convicted and sentenced to 4 years’ imprisonment.
77On Charge 2, possession of a drug of dependence, you are convicted and sentenced to imprisonment for one month.
78On Charge 3, possession of an explosive substance without lawful excuse, you are convicted and fined $500.
79On Summary Charge 7, dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to 2 months’ imprisonment.
80The sentence imposed in respect of Charge 1 is the base sentence.
81One month of the sentence imposed in respect of Summary Charge 7 is to be served cumulatively on the base sentence.
82The Charge 2 sentence is to be served wholly concurrently.
83The total effective sentence is therefore 4 years and one month together with a fine of $500.
84You will be eligible for parole after you have served 2 years and 6 months.
85Pursuant to s 18 of the Sentencing Act, I declare that the 45 days you have been in custody is referrable the sentence I impose as pre-sentence detention and reckoned as time served.
86Pursuant to s 6AAA of the Sentencing Act, if you had pleaded not guilty, the total effective sentence that I would have imposed would have been imprisonment for 6 years with a non-parole period of 4 years and 2 months.
87I make the forfeiture and disposal orders sought by the prosecution noting that they are unopposed.
88Pursuant to s 89DI of the Sentencing Act, I declare you to be a ‘Serious Drug Offender’.
0
12
0