Director of Public Prosecutions v Torossian
[2022] VCC 1561
•13 September 2022
| IN THE COUNTY COURT OF VICTORIA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-00436
CR-19-01424
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIMON TOROSSIAN |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 August 2022 | |
DATE OF SENTENCE: | 13 September 2022 | |
CASE MAY BE CITED AS: | DPP v Torossian | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1561 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentence
Pleaded guilty - indictment CR-21-00436: 2 charges possessing a drug of dependence;
9 charges attempting to possess drug of dependence; indictment CR-19-01424: 1 charge theft; 1 charge cultivating narcotic plant, 2 charges possessing drug of dependence; 3 summary charges. Offending between 14 Nov 18 – 2 Jan 19; aged 34 years at time of offending – mental health issues from 2013, involuntary admissions to mental health impatient unit; Bipolar Affective Disorder, Schizoaffective Disorder - better insight now into offending and mental health issues
Cases cited - Muldrock v R [2011] HCA 39; DPP v Fatho; DPP v Van; DPP v Huynh [2019] VSCA 311
Sentence – CR-21-00436 2 years six months with 921 days to be reckoned as already served; CR-19-01424 12 months imprisonment to be served concurrently with CR-21-00436 12 month Community Correction Order; summary charge 4 – fine.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Singh | OPP |
| For the Accused | Mr S. Kenny | Starys Lawyers |
HER HONOUR:
1
Simon Torossian, you have pleaded guilty to a number of charges on
two indictments, as well as several summary charges. On
Indictment CR-21-00436 you have pleaded guilty to two charges of possessing a drug of dependence and nine charges or attempting to possess a drug of dependence. This will be referred to as the “1,4-Butanediol indictment” or the first indictment.
On Indictment CR-19-01424 you have pleaded guilty to one charge of theft, one charge of cultivating a narcotic plant, two charges of possessing a drug of dependence and one charge of handling stolen goods. This will be referred to as the ”Non-1,4-Butanediol indictment” or the second indictment. The three summary charges to which you have pleaded guilty are summary charge 4 - possessing quantity of ammunition; summary charge 9 - possessing a prohibited weapon, namely, a slingshot and summary charge 13 - dealing with the proceeds of crime, namely two iPhones and their cords.
2The two separate groups of charges, as they are presented on the indictments, arose out of two separate investigations. The first commenced on 14 November 2018 when police attended your address because you had been the victim of an aggravated burglary. The police returned on 15 November with a search warrant and they located various packages of a clear liquid called 1,4-Butanediol which is a substance listed as a drug under Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981. This is Charge 1 on the first indictment.
3
Meanwhile, on the same day, 15 November, the Department of Immigration and Border Protection intercepted an air cargo package addressed to your company
SBT Computers in Taylor Court, Endeavour Hills, which is your mother's home address, where, at the time, you maintained a room and where you are now living. At the time, you were also leasing two properties at 9 and 11 Sanctuary Rise,
Narre Warren and a factory space at 8/167 Princes Highway, Hallam.
4
The interception of the package disclosed two containers marked as
hydroxyethyl methacrylate but later tested as 49.3 kilograms of 1,4-Butanediol. This is Charge 2 on the first indictment.
5
On 16 November, you were arrested and interviewed in relation to the result of the search warrant executed at your home on 15 November. The police were unaware of the interception by Border Force the previous day. You admitted cultivating and possessing cannabis, possessing methylamphetamine, possessing a prohibited weapon and theft of electricity. You were charged with possession of several bottles of 1,4-Butanediol arising from that search warrant and you were asked about it in the record of interview. You denied possessing it, stating you did not know what that was and, ultimately, said that you did not touch it, did not want anything to do with it, and that you hate it. That possession is reflected in
Charge 1 on the first indictment.
6
On 24 November, another air cargo package was intercepted at Melbourne Airport addressed to you at the Taylor Court address. The contents of the package were described as “Ethyl Cinnamate” but when tested were found to be 51.4 kilograms of 1,4-Butanediol. Further interceptions of packages occurred on 25 November and the 1, 4, 8, 11, 24, and 27 December. The separate contents are set out in the footnote to these sentencing remarks, with a total amount of 1,4-Butanediol that the packages contained and which you attempted to possess being
733.1 kilograms, representing roughly three-quarters of a tonne[1]. The interceptions just described are Charges 3-10 on the first indictment.
[1][1] 25 November – package labelled “2 Hydroxyethel”, found to be 198.4 kgs 1,4-Butanediol
1 December – package labelled “4 Methoxyacetophenone”, found to be 49.7 kgs 1,4-Butanediol
4 December – 2 packages labelled “4 Methoxyacetophenone”, found to be 48.5 kgs & 49.7 kgs 1,4-Butanediol
8 December – package labelled “”4 Methoxyacetophenone”, found to be 49.8 kgs 1,4-Butanediol
11 December – package labelled “6-Chlorohexanol”, found to be 186.5 kgs 1,4-Butanediol
24 December – package labelled “silicone rubber”, found to be 25.1 kgs 1,4-Butanediol
27 December – package labelled “detergent”, found to be 24.7 kgs 1,4-Butanediol
7On 2 January 2019, you were arrested at the Taylor Court address in relation to an unrelated matter and both your mobile phones were seized at this time. The police executed search warrants and located the two phones, cash of $2088.10, two hard drives, a two-litre container, one millilitre of 1,4-Butanediol, two 20-litre containers with remnants of a clear liquid, and a number of car keys. The three containers are part of Charge 11.
8On 4 January, police executed search warrants at the factory in Hallam and found a computer and various documents, mostly printed emails between you and companies in China containing invoices for the purchase of 1,4-Butanediol, discussing payment and account details for orders of it. Analysis of your mobile phones revealed you were in contact with at least five Chinese companies at various stages of purchasing and ordering large quantities of 1,4-Butanediol.
9As well as confirming the purchases and prices paid, these exchanges referred to directions by you to the Chinese companies to change the labelling of the packages. The invoices and labelling made it possible to identify the packages intercepted in Melbourne. The Chinese companies were all legitimate traders in 1,4-Butanediol.
10The maximum penalty for all charges, the possession and the attempted possession charges, is five years.
11
Returning now to the second indictment. When the police executed search warrants at the houses in Taylor Court and Sanctuary Rise, they located a
snap lock bag of cannabis seeds weighing 3.3 grams, a Samsung mobile phone and a slingshot with assorted ball bearings.
12At 11 Sanctuary Rise, they found a hydronic cannabis cultivation set-up, including a watering system, charcoal filters and lighting. There were 28 cannabis plants in assorted sizes weighing in total 1.85 kilograms. That is part of Charge 2.
13An electrical bypass had been installed. That is Charge 1.
14At 9 Sanctuary Rise, police found seven containers of green vegetable matter (cannabis) in various states weighing 460.5 grams part of charge 2; a mobile phone and a plastic storage bag or opaque crystal substance which was methylamphetamine weighing 5.7 grams with 82 per cent purity, charge 3. The phones and computer cord seized on 2 January are the subject of Summary Charge 13. A bag of green vegetable matter is also part of Charge 2. A bag of methylamphetamine is Charge 5. Two quantities of ammunition and magazines is Summary Charge 4, and a police ballistic vest, handling stolen goods, is Charge 4 on the indictment.
15The maximum penalty for theft is 10 years' imprisonment, for cultivating cannabis and for handling stolen goods it is 15 years, for dealing in the proceeds or crime and possessing a prohibited weapon it is two years. For possessing a drug of dependence the maximum penalty is a fine of 30 penalty units or 12 months' imprisonment or both. For possessing ammunition it is a fine of 40 penalty units.
GRAVITY OF THE OFFENDING
16These charges are for possession rather than trafficking, in contrast to the only other relevant case dealing with 1,4-Butanediol, the case of DPP v Fatho & Ors[2]. For that reason, that case is of little assistance, as it demonstrates the seriousness of trafficking in this precursor drug, deserving a very considerable prison sentence.
[2] DPP v Fatho; DPP v Van; DPP v Huynh [2019] VSCA 311
17Although you possessed relatively small amounts of 1,4-Butanediol, the attempts were for extremely large amounts. This is the foundation of the seriousness of the offending. It was an ongoing enterprise, although, with no indication of any syndicate and with some sophistication indicated by dealing with five different Chinese sources and taking steps to hide the identification of the substance using false labels on the packaging. Clearly, the need to deter others from such offending is an important part of reducing the likelihood of the handling of substances with potentially harmful effects on the community.
MITIGATING MATTERS
18The pleas to the separate indictments were made at different times; one at a relatively early stage and the other after negotiations had taken place over about a nine-month period from May 2021. The pandemic has played a part in this delay and you spent two-and-a-half years on remand, including a one-month sentence for unrelated matters[3].
[3] 30 day sentence served in February/March 2021, resulting from altercation with mother
19You are entitled to a discount on your sentence for the plea as it has avoided what had become two trials after they were severed. At a time when the court is still dealing with a large backlog of cases, a plea has high utilitarian value and this must be acknowledged. It is also accepted as an indication of remorse although, with no explanation offered for your involvement in what was relatively unsophisticated but quite blatant possession of very large quantities of the substance, I can only conclude that your remorse if limited. Possibly, this is due to your apparent lack of insight. At the same time, the absence of an explanation is not an aggravating factor in your offending and your plea indicates that you have accepted responsibility for your offending.
20You were assessed by the psychologist Ms Laura Fleming in June this year and her report indicates you offered her an explanation for your offending in terms of believing you were running a business importing chemicals to sell to computer businesses as 'solder flux'. You denied that you intended to sell the chemicals as illicit drugs, even though 1,4-Butanediol is apparently used as a precursor drug in the manufacture of another drug of dependence, GHB.
21You were in custody for 920 days for these matters, partly during the time of the pandemic when prison conditions have been difficult. It is accepted that restrictions imposed on prisoners and the hardship caused are to be taken into account in determining sentence, with the risk of infection and lockdown still operating to perpetuate these difficulties.
22Ms Fleming's report provides background information as to the serious mental health problems from which you have suffered over the years, at least since 2013. Before traversing that history, I shall set out some details as to your personal circumstances.
23
You are now aged 37 and you were 34 at the time of the offending. You come from a stable family background with two siblings. Your father died some years ago and in recent times you have been living with your mother, despite a
troubled period of time in your relationship with her. That resulted in a
Family Violence Intervention Order following an argument with her. You now get on well with her and have acknowledged that she often noticed early warning signs of your mental health deterioration and organised support for you.
24After school you completed TAFE certificates in electronics and computer systems and then you worked in that field. You were in a long-standing relationship with Sarah, the mother of your two children, now aged 11 and nine, who live with her and you do not have contact with them currently, although you hope this will change. You separated in 2013 initially when your mental health deteriorated and after a period of reconciliation you formally separated in 2019 when you were placed in custody.
25Your criminal history indicates drug use from your late teenage years and continuing, with a large number of driving offences, as well as family violence offending and a charge of reckless conduct endangering life.
26
As I said, your mental health problems date back to at least 2013 when you commenced treatment after using illicit substances to cope with the initial breakdown with Sarah around that time. You were involuntarily assessed and treated in a mental health inpatient unit where you were diagnosed with bipolar affective disorder, although in 2019 a differential diagnosis of
schizoaffective disorder was noted. Until very recently, you had been admitted to hospital five times, including an admission in December 2021 when you were released from custody and were not on any medication. Just after the plea hearing in this matter, you were again admitted to hospital.
27
At the time of the offending, you were a voluntary patient of
Pakenham Community Mental Health Service and on prescribed medication, although reportedly not within a therapeutic range at the time. You were also reportedly manic at the time of your arrest and the medication continued in custody until you chose to cease in August 2019. You are now again receiving case management from the Pakenham service, since January this year, with prescribed mood stabiliser tablets and medicinal marijuana. You are also receiving counselling and psychological therapy, having presented on a referral by your GP with anxiety and depression.
28Of interest is a report from a senior psychiatric nurse from the Mental Health Advice and Response Service of Forensicare dated 9 December 2021, pending a bail application which resulted in your release on 17 December. It would seem that at that time you were unmedicated, having made that choice a few months earlier as I said a moment ago. At that time, you maintained that you were not a criminal and, according to the report, you explained away the charges against you as being exaggerated and fabricated. It was noted that your judgement and insight appeared grossly impaired.
29At around the same time, an assessment for CISP was conducted and you were found unsuitable owing to concerns with your presentation. This was despite having had positive assessments in January and February 2021 in anticipation of a bail application then which saw you released for a few days. You then offended during an altercation with your mother and were returned to custody to serve the 30-day sentence, following which you remained in custody until December.
30
This background provides the context from which your belief about your offending arose. However, it is not submitted that there is a nexus between your mental health and your offending within the meaning of the Verdins principles. It does arise in relation to the fifth limb of Verdins, meaning that your
mental health difficulties are likely to make, or indeed have made, your time in prison more burdensome than for others. That submission was not opposed by the prosecution.
31Testing conducted by Ms Fleming indicates that you still have potential drug-related problems, and she noted that your use of substances was likely a coping mechanism for your bipolar affective disorder. Your use of methamphetamine at the time of the offending would have heightened your risk of impulsive and reckless behaviour, further impairing your insight, decision making and judgement, as well as worsening your underlying mental health issues. [4]
[4] Report of Laura Fleming, dated 27 July 2022 at [92] and [96]
32Ms Fleming also addressed your risk of reoffending as low to moderate, with a strong need for supervision in the community. You reported to her that you are no longer using drugs, except for prescribed marijuana. She considers that if you were to be released after a period of custody, you would need appropriate support to prevent relapse, such as that which occurred in December 2021.
33
The material appears to indicate a considerable improvement in your mental state since late last year, including better insight, with the benefits of medication and other treatment. Since being released on bail, you have been living with your mother, helping her, and you plan that this will continue. However, on
14 August, a few days after the plea hearing, you were admitted to a psychiatric hospital until 29 August, two days before you were due to be sentenced. On
31 August you were placed on a Community Treatment Order by means of which you are prescribed a mood stabiliser and receive fortnightly anti-psychotic depot zuclopenthixol.
34The prosecution submission as to sentence was that a prison term with a period of parole was appropriate because of the seriousness of the first indictment, whereas the second indictment could be appropriately dealt with by a combination sentence.
35The defence submission was that a Community Correction Order in combination with a prison term would adequately address the offending and, importantly, would allow for your rehabilitation in the community.
36As I indicated earlier, there are no similar cases which might provide guidance as to an appropriate sentence for the charges involving possession and attempted possession of 1,4-Butanediol. The maximum sentence of five years' imprisonment is one guide provided by the legislature. In this case, the large amount of the drug that was the subject of your attempt at possession is a further guide, as well as the relative sophistication of the enterprise and your attempts at subterfuge.
37Your prospects for rehabilitation appear to be almost entirely dependent on treatment and support. I arranged for you to be assessed as to your suitability for a Community Correction Order but that assessment had to wait until after your discharge from hospital and it was accompanied by a Forensicare assessment conducted by the Mental Health Advice and Response Service (MHARS). The report of that assessment contained the details of your recent hospitalisation and current medication, as I have outlined above.
38Further to that report, the court has been provided with a letter from
Mr Gregory Lane, a registered nurse, who states that the CTO expires on
30 November 2022 and that you have been assigned a case manager. He also states that your psychiatrist can apply to have that CTO extended or revoked.
39After very careful consideration, I have determined that the appropriate sentences will not require you to spend any further time in prison, but instead permit you to serve any further punishment in the community, as well as continuing your current treatment. This is the best way to encourage your rehabilitation, while at the same time recognising the important need for general deterrence.
40The most persuasive indicator for leniency is the observation made by Ms Fleming[5] in her report that, even though you were receiving voluntary treatment at the time of the offending, you were not receiving appropriate treatment in the therapeutic range for your condition. She said your treatment needs would be the highest modifier to reduce or increase your risk of reoffending. [6]
[5] Report dated 27 July 2022 at [94]
[6] Ibid [90]
41In the case of Muldrock v R, the court distinguished between an offender with an intellectual disability who might lack capacity to understand wrongfulness and an offender with a mental illness where there may not be a causal relationship between the offender's illness and the offending. That, of course, is the case here. While your moral culpability is not reduced by the existence of your mental illness, a sentence which fully reflects the need for general deterrence would be inappropriate if imposed on you, and a moderate reduction is appropriate.
42In the words of Young CJ, you are not an appropriate medium for making this an example to others. In addition, to quote the words of Lush J in the Victorian case discussed in Muldrock:[7]
[7] [2011]HCA 39
A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.
43The importance of your treatment needs is very obvious from the recent deterioration of your mental health, leading to another admission into hospital and recommencement on a CTO with fortnightly depot injections. Your extensive time on remand was spent largely under conditions imposed by the pandemic, with restrictions on programs and visits, and with prisoners often confined to their cells. I have taken into account these unusual conditions and allowed some leniency as a result. All these reasons for leniency point to a sentence much less severe than otherwise.
44Would you stand now please, Mr Torossian.
SENTENCE
45On the first indictment numbered CR-21-00436, I sentence you as follows: for each of Charges 1, 2, 3, 5, 6, 7, 9, 10, and 11, 12 months' imprisonment; for each of Charges 4 and 8, 18 months' imprisonment. The sentence for Charge 4 will be the base sentence for the purposes of cumulation.
46In making orders for concurrency, I have taken into account the principle of totality. I order that six months of the sentences for Charges 1 and 6 be served in cumulation upon the base sentence. That results in a total affective sentence of
two years and six months. Because you have already served that time, there is no need to fix a non-parole period. To give effect to that, I declare that your
pre-sentence detention of 921 days is to be reckoned as having already been served and that shall be noted on the court record.47Turning now to the second indictment numbered CR-19-01424, the sentences are as follows: for each of Charges 1 and 2, nine months' imprisonment; for each of
Charges 3 and 5 and Summary Charge 9, three months' imprisonment; for each of the indictable Charge 4 and Summary Charge 13, six months' imprisonment; for
Summary Charge 4 I impose a fine of $200. The sentence for Charge 2 is the base sentence for purposes of cumulation.48I order that two months of the sentence for Charge 1 and one month of the sentence for Charge 3 be served in cumulation upon the base sentence. That results in a total affective sentence of 12 months.
49I shall also impose a Community Correction Order in relation to Charges 1 and 2 and indictable Charge 4 which will begin today and will last for 12 months. You will be under supervision and must perform 100 hours of unpaid community work. you must have treatment for drug use and for your mental health. Your case worker will know that you are subject to a Community Treatment Order and this will be taken into account as part of your treatment under the CCO. There will also be judicial monitoring which means you must come to court from time to time to discuss your progress with me.
50You must attend the Corrections Office at 46-50 Walker Street, Dandenong by
4 pm on Thursday.51Mr Torossian, do you agree to be bound by the conditions of a CCO which have been explained to you as part of the assessment?
52OFFENDER: Yes, Your Honour, thank you.
53HER HONOUR: If you were to breach the CCO, you would be charged with that offence and brought back to court to be resentenced by me.
54Pursuant to s6AAA of the Sentencing Act, if you had pleaded not guilty to these charges, I would have sentenced you to four years' imprisonment with a non-parole period of three years.
55The prosecution seeks orders for forfeiture and disposal and I make those orders. Are there any matters that I omitted or neglected, Mr Singh, first of all?
56MR SINGH: Your Honour, could I just suggest that you order that the 12 months sentence for the second indictment is concurrent with the first indictment.
57HER HONOUR: Yes. Yes, that's my intention and I shall add that order as well.
58MR SINGH: Thank you, Your Honour.
59HER HONOUR: Mr Kenny?
60MR KENNY: Yes, I was thinking about that very point as well.
61HER HONOUR: I should say that the sentence, the proposed sentence as I've set it out, has been sent to Central Records to check that it works and it got a tick.
62MR KENNY: Well, I'm content with that, Your Honour.
63MR SINGH: The gun one, and the forfeiture and the disposal.
64HER HONOUR: Sorry what was that?
65MR SINGH: There are three orders.
66HER HONOUR: Yes, I've signed all those.
67MR SINGH: Thank you.
68HER HONOUR: Yes, they'll be available for you.
69MR SINGH: Thank you.
70HER HONOUR: The first judicial monitoring appointment will be on
1 December at 9.30. I'll just explain a bit about that to Mr Torossian before the CCO's signed. Mr Torossian, on that day, you come along to court. There won't be any lawyers here. It'll just be you. You can bring a friend or relative with you if you wish to and I will have a progress report from your case manager by then, you'll have a copy of it as well, and it gives me the opportunity to ask you how you're getting on. You and I can discuss your progress and it should take round about 20 minutes or so. All right, Mr Kenny, would you like to accompany my associate to the dock?71MR KENNY: Yes, Your Honour.
72HER HONOUR: One thing I didn't explain to Mr Torossian in reading out the conditions of the Community Correction Order, Mr Torossian, when you perform some of the hours of treatment, those hours can be credited against the unpaid community work.
73OFFENDER: Thank you, Your Honour.
74HER HONOUR: Thank you, Mr Kenny and Mr Singh, for your assistance in this matter. I think that completes everything.
75MR KENNY: Yes, thank you, Your Honour. May it please the court.
76MR SINGH: If Your Honour please.
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