Director of Public Prosecutions v Tsiaras
[2018] VCC 420
•9 March 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
Case No.13-01283
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EVANGELOS TSIARAS |
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JUDGE: | His Honour Judge Chettle | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 9 March 2018 | |
CASE MAY BE CITED AS: | DPP v Tsiaras | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 420 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms E. McDonald | |
| For the Accused | Mr S. Kenny |
HIS HONOUR:
1 Evangelos Tsiaras, you have been convicted by a jury of one charge of attempting to possess a marketable quantity of a border controlled drug. This is an extremely serious criminal offence with a maximum penalty of 25 years imprisonment and a fine of $550,000.
2 The facts of your offending are set out in Exhibit A, the summary of prosecution opening. I incorporate that document into these reasons for sentence and I sentence you on the basis of the facts set out therein.
3 Very briefly stated, between 21 March 2012 and 2 April 2012 you attempted to obtain possession of a package sent from Argentina. It contained 309.4 grams of white powder analysed to contain 72 per cent pure cocaine or 222.3 grams. A marketable quantity is two grams. A commercial quantity is two kilograms.
4 You tried to collect the parcel from the transport depot and subsequently tried to have it delivered to Abbotsford. You tried to pay another man to accept delivery. You used false names in your attempt to gain possession of the cocaine. The drugs had a wholesale value of between 100 and $130,000 and a street value in excess of $220,000.
5 You were arrested on 16 January 2013 when at interview you denied possessing the cocaine. You were bailed. A committal was held in July 2013 and a trial listed for June 2014. Your counsel was unavailable on that date and the trial was re-listed for June 2015. You pleaded guilty in May 2015 and the plea was subsequently adjourned to November 2015. You then successfully sought to change your plea.
6 Your trial commenced before me on 21 November 2016, however, you absconded on 23 November. The jury convicted you on 25 November, however, you were not arrested until 27 November 2017 and you have been in custody since. You had apparently been living on the streets for that year.
7 You have admitted a relevant prior criminal history. Your offending commenced in 1987. You have convictions for violence in 1992 and were sentenced to imprisonment. In March 1995 you were sentenced initially to three years' imprisonment for trafficking cocaine and heroin. That sentence was reduced on appeal to 18 months with a six month non parole period.
8 The Court of Appeal set out the ways in which your mental illness should be recognised in sentencing. The decision in your case formed the background of the well know decision of Verdins, Buckey and Vo [2007] VSCA 102. At paragraph 32 of that judgment the court listed six ways impaired mental functioning is relevant to sentencing.
9 Firstly, the condition may reduce moral culpability. Denunciation is less likely to be a relevant sentencing factor. Secondly, the condition may have a bearing on the kind of sentence to be imposed. Thirdly, general deterrence may be moderated or eliminated depending on the nature and severity of the symptoms exhibited and the effect of the condition on an offender at the time of offending or at the date of sentence or both. Fourthly, specific deterrence may be moderated or eliminated in the same way. Fifthly, the existence of the condition at the date of sentencing may mean the sentence will weigh more heavily on the offender than a person in normal health and finally, where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health this will be a factor tending to mitigate punishment and I will return to all those matters subsequently.
10 In 1998 you were fined for importing prohibited goods. I do not know what they were. In about 2003 you travelled to Columbia and in 2005 you were sentenced on appeal to 46 months imprisonment and fined 21,900,000 pesos for the offences of trafficking, manufacturing or possession of cocaine.\
11 The judgments in that case indicate that in early 2004 you were arrested about to board an aeroplane to Australia. You were internally carrying 255 grams of cocaine. You served 27 months of that sentence in a Columbian prison.
12 Back in Australia in June 2010 you were released on a bond for offences of possession, use methylamphetamine. The magistrate noted in sentencing you this.
13 "This order is made recognising that the defendant spent some time on remand before the charges could be heard. The defendant is to engage with and comply with all treatment and counselling recommendations and directions of Forensicare or other mental health practitioners."
14 You have subsequent matters that are relevant to the legal system's acknowledgement of your chronic mental health issues but, of course, are not to be treated as prior convictions.
15 In May 2013 you were placed on a community corrections order for offences of possession and trafficking cannabis, heroin and cocaine. That community corrections order included drug treatment and mental health assessment and treatment conditions. You subsequently breached that order.
16 In August 2013 you were sentenced to imprisonment for a driving offence and threatening words. The court noted your psychiatric illness. In July 2014 you received a further community corrections order with drug and mental health conditions for driving and drug possession offences.
17 It is clear that you have been burdened for many years with chronic mental illness. You have many prior criminal appearances, many relating to drugs but all have occurred against a background of schizoaffective disorder.
18 Turning to your personal history. You are now 52 years of age being born on 10 March 1966 in Greece. You moved to Australia with your family when you were four years old. You grew up in Port Melbourne. You have two younger brothers. As a child you experienced significant domestic violence. You were struck by your father as well. You claim to have been sexually assaulted a child. Your parents separated when you were 18. You had virtually no contact with your father since but remain close to your mother. You were living with her before you absconded and she attended court on your plea to support you.
19 You were educated until the age of 15 when you started work as an apprentice tailor with your father. At the age of 19 your mental health issues emerged and you have effectively been unemployed since. You have been in receipt of a disability support pension since your diagnosis with schizoaffective disorder bipolar type.
20 Whilst you were in Columbia you met and married your wife. She returned to Australia with you but subsequently you have separated. You have two sons aged nine and seven who live with your wife in Melbourne but apparently you have not seen them for two years.
21 Your prior criminal history illustrates a history of drug abuse. You used cannabis and alcohol as a teenager and have abused cocaine for many years. You developed a significant cocaine addiction. You have been hospitalised on many occasions over your life because of your mental illness. Since your rearrest in November 2017 you have spent two and a half months in the prison acute assessment unit but you are not there now. You are not taking medication and claim to have your voices under control, however, you can access your medication and assistance in prison if you require it.
22 Reports from Associate Professor Carroll, Exhibit B, and Dr Fiona Best, Exhibit 2, were tendered upon your plea. These reports outline your mental health history. Professor Carroll states,
23 "There is nothing to suggest that his mental illness played any causal role in the commission of the offences under consideration. His motivation appears to obtain a small quantity of illicit drugs in order to boost his mood."
24 He concluded at paragraph 85,
25 "Fortunately he has good insight into his mental health problems and makes it clear that he will continue with his medication if incarcerated. Given the stress of imprisonment and his history of psychotic illness with multiple episodes there would be some risk of imprisonment precipitating in a relapse into frank psychosis although I note that this did not occur when he was imprisoned for a month in 2014. Provided it is seen likely that he engages with mental health services in prison and continues with his medication then I believe the risk of further psychotic episodes in prison can be minimised. That said, there will remain some significant risk of a relapse into psychosis. To this moderate extent therefore imprisonment would be more onerous for him than an average person."
26 Later Professor Carroll opined,
27 "It appears that his risk of offending is intimately linked to his risk of relapse into substance misuse."
28 Dr Best reports at paragraph 5 of her report,
29 "At the time of the offending Mr Tsiaras reported that he had been discharged from the Northern Hospital Psychiatric Unit ten days earlier and he was a patient of his local Crisis Assessment and Treatment Team who were visiting him on a daily basis to supervise his medication. He reported that he believed he was a member of the CIA and being paid with cocaine. Given Mr Tsiaras' long history of mental illness symptoms that have been refractory to treatment and recent discharge from an acute psychiatric unit just prior to the alleged offending it is likely the Mr Tsiaras' judgment was impaired at the time of the alleged offence."
30 I pause there to say there is no evidence, in fact, that you were so released from the Northern Hospital Psychiatric Unit. You may have been but there is no evidence to that effect. Dr Best reports,
31 "It's likely that his judgment was impaired as a consequence of chronic mental illness at the time. Mr Tsiaras' impaired mental function as a consequence of his mental illness means that imprisonment may have the capacity to weigh more heavily on him than on an individual without those difficulties and imprisonment may lead to deterioration in his mental health over time."
32 There is a difference of opinion as to the relevance of your illness to your offending. That is between the two medical reports. As I said, there is no evidence to find that you were exhibiting acute symptoms at the time of your offending. I do, however, accept and take into account that your judgment was likely to be impaired at the time of your offending because of your chronic mental illness.
33 Your counsel relied predominantly upon limbs five and six of the Verdin principles I referred to earlier. I take into account the clear evidence that imprisonment may weigh more heavily upon you because of your illness and that there is a risk that imprisonment may have an adverse effect on your mental health. Both of these factors mitigate, to some extent, the sentence I am about to impose.
34 You are not an Australian citizen. You are at risk of being deported because of the sentence I am about to impose. Your mother, brothers and wife and children all live in Australia. I take into account the fact that your risk of deportation on the completion of your sentence will make your time in custody more onerous for you. You will worry about the deportation issue.
35 Both your counsel and the prosecutor provided very helpful sentencing submissions, Exhibit 1 and Exhibit D. I have given consideration to all submissions made to me. Your counsel properly submitted that your offending falls in the mid to lower end of the range of seriousness for the offence of attempting to possess a marketable quantity of a border controlled drug. He correctly identified the serious nature of your offending and recognised that general deterrence and just punishment "must loom large in the instinctive synthesis."
36 I do not accept Mr Kenny's submission that it is hard to assess your role in the offending. In my view there is no evidence to find anyone other than you involved in this attempted importation. You were intimately involved in the repeated attempts to take possession of the cocaine. You used false identities, sought to involve the assistance of others and sought determinedly to obtain these drugs. You are not a mere courier or conduit. In my view you were the principal person involved in this offence.
37 I have reviewed the cases referred to by Mr Kenny and the learned prosecutor to obtain assistance as to current sentencing practices for offending like yours. As I said during your plea, it is difficult to reconcile all the cases and sentences because each case has its own unique features. Many of the cases involve pleas of guilty. You cannot avail yourself of that sentencing discount given to reflect pleas of guilty. Current sentencing practices are, of course, only one of the factors to which this court must have regard. I must have regard to all of the factors set out in s.16A of the Crimes Act 1914.
38 Clearly, specific deterrence is relevant in your case. You have not been deterred by past sentences including what must have been a very unpleasant prison stay in Columbia. The nature and seriousness of your offending together with your relevant significant prior convictions dictate that a substantial term of imprisonment must be imposed for your offending. I will reduce the sentence I am about to impose to reflect the mitigatory factors referred to due to your mental illness.
39 Your prospects of rehabilitation are extremely guarded. Although you have the support of your mother and your ex-wife your history makes your future somewhat opaque. Clearly your prospects depend to a large extent on you remaining drug free upon your release from custody. I have taken into account your concerns as to possible deportation and to some extent that you have had this sentence hanging over your head since 2013. It may well have been your own fault that there has been a delay, however, I accept that you have been stressed as to your legal predicament.
40 Would you stand up please. On the one charge of attempting to possess a marketable quantity of a border controlled drug you are convicted and you are sentenced to be imprisoned for eight years. I order that you serve five years and six months of that sentence before being eligible for parole. I declare that 102 days of that sentence, not including today, as already been served by way of pre-sentence detention.
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HIS HONOUR: Any other orders required, Madam Prosecutor?
MS McDONALD: No thank you, Your Honour.
HIS HONOUR: All right. Anything else?
MR KENNY: Not from me, Your Honour.
HIS HONOUR: All right. Would you remove Mr Tsiaras please.
MR KENNY: May it please Your Honour.
HIS HONOUR: All right. I'll stand down until the jury is ready.
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