Director of Public Prosecutions v Vartouhi (a pseudonym)
[2020] VCC 1734
•30 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARMAN VARTOUHI (A pseudonym) |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 25 August 2020 & 14 October 2020 | |
DATE OF SENTENCE: | 30 October 2020 | |
CASE MAY BE CITED AS: | DPP v Vartouhi (A pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1734 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: trafficking in a drug of dependence in not less than a commercial quantity - trafficking in a drug of dependence - possessing a drug of dependence - prohibited person possess firearm - prohibited person possess silencer – extensive prior criminal record – COVID-19 – mental illness – long term drug use – coextensive – early guilty plea – denunciation – general deterrence – specific deterrence
Legislation Cited: Sentencing Act 1991
Cases Cited: Bugmy v R [2013] HCA 37
Sentence: 7 years and 2 months’ imprisonment and I fix the period of 5 years’ imprisonment as the period that you must serve before you will become eligible for parole - s6AAA: but for your plea of guilty I would have sentenced you to 10 years’ imprisonment with a non-parole period of 8 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Pickering | Solicitor for Public Prosecutions |
| For the Accused | Mr R Melasecca | Melasecca Kelly & Zayler |
HIS HONOUR:
1 Arman Vartouhi[1], on 7 August 2020, you pleaded guilty to an indictment containing six charges being:
[1] A pseudonym
· trafficking in a drug of dependence in not less than a commercial quantity (Charge 1);
· trafficking in a drug of dependence (Charge 2);
· possessing a drug of dependence (Charges 3 and 4);
· prohibited person possess firearm (Charge 5); and
· prohibited person possess silencer (Charge 6).
2 In addition, you pleaded guilty to four related summary offences being:
· deal with property suspected of being the proceeds of crime, being $37,200 in cash and jewellery (Charge 6);
· possess a prohibited weapon, namely four Samurai swords, a knuckleduster and an extendable baton (Charge 13);
· possess cartridge ammunition without being the holder of a licence under the Firearms Act 1996 (Charge 16);
· possess a Schedule 4 poison, namely Somatropin (Charge 17).
3 The maximum penalties for these crimes are:
· trafficking in a drug of dependence in a commercial quantity, 25 years’ imprisonment;
· trafficking in a drug of dependence, 15 years’ imprisonment;
· possess a drug of dependence, 5 years’ imprisonment or, should you prove on balance of probabilities that the offence was not committed for any purpose relating to trafficking in that drug of dependence, one year imprisonment;
· prohibited person possess firearm, 10 years’ imprisonment;
· prohibited person possess silencer, 8 years’ imprisonment;
· deal in property suspected of being the proceeds of crime, 2 years’ imprisonment;
· possess prohibited weapon, 2 years’ imprisonment;
· possess cartridge ammunition, a fine of 40 penalty units; and
· possess Schedule 4 poison, 10 penalty units.
4 You admitted your prior criminal record which shows that between 1996 and 2018, when you were aged between 17 and 39, you amassed 64 convictions from 10 court appearances, including prior convictions for:
· trafficking in methylamphetamine;
· being a prohibited person in possession of a firearm;
· possess steroids;
· dealing in property suspected of being the proceeds of crime; and
· trafficking in amphetamine.
5 In addition, you have many prior convictions for possessing drugs of dependence, committing acts of violence and bail offences.
6 Your plea was conducted over three days, being 7 August, 25 September and 14 October 2020. Tendered as Exhibit A and read aloud in court was the Summary of Prosecution Opening.
7 In summary, on 14 March 2019, police executed a search warrant at premises occupied by you at Botanic Ridge. The search conducted pursuant to the warrant revealed:
· 359.5 grams of methylamphetamine (Charge 1);
· 1,840.3 grams of 1-4 Butanediol which, upon ingestion, metabolises into the drug GHB (Charge 2);
· various bottles of steroids (Charge 3 and related summary offence Charge 17);
· four cannabis seedlings (Charge 4);
· $37,260 in cash, together with jewellery – including rings, bangles, earrings and chains (related summary offence Charge 6);
· a homemade 9 millimetre firearm (Charge 5);
· a silencer (Charge 6);
· 20 rounds of 9 millimetre ammunition (related summary offence Charge 16);
· four Samurai swords, a knuckleduster and an extendable baton (related summary offence Charge 13).
8 You were arrested and taken to the Dandenong Police Station where you were interviewed under caution. You made “no comment” answers in respect of questions directed towards trafficking in drugs of dependence and the firearms found at your home. However, you admitted ownership of the steroids and growth hormones, the Samurai swords, the extendable baton – which you said was a “vehicle safety device”, jewellery, that you self-medicated with GHB, and that the cannabis seedlings found by police were yours.
9 Tendered as Exhibit 1 on the plea were extensive defence submissions. Mr Vartouhi, you are 42 years of age and were born in Kuwait to an Egyptian father and a Danish mother. You have one sister but have no relationship with her. When you were aged about three years, your family moved to Australia. When you were aged about five years, your parents separated and after the separation, you lived with your mother. Your mother re-partnered and you were sexually abused by her partner when you were aged seven years or so. The sexual abuse was described by you as repetitive and commenced as fondling and escalated to penetration in the report of Mr Luke Armstrong, psychologist, dated 31 July 2020 (Exhibit 5).
10 When you were aged about nine years, you went to live with your father. It is unclear from an analysis of the reports of Mr Armstrong and Dr Adam Deacon, psychiatrist, dated 2 April 2020 and 2 August 2020, that became Exhibit 4, whether you revealed the sexual abuse to your father.
11 You reported to Dr Deacon and Mr Armstrong that you commenced alcohol consumption at the age of ten. When aged 13, you returned to the custody of your mother. I was informed that the cause for this move was an allegation made by a step-sister that your father had raped her. Investigations conducted during the course of the part-heard plea uncovered what became Exhibit 10, an IBR docket, that revealed that your father was processed by police on 17 October 1990 in respect to an allegation of indecent assault. Police records go no further. (see the letter from Acting Sergeant Gurishic dated 10 September 2020, which forms part of Exhibit 10). It was put that as a result of the allegations made against your father that he attempted to commit suicide and tendered as Exhibit 11 were records of the Frankston Hospital which recorded your father’s admission to the Frankston Hospital on 23 August 1990 and subsequent discharge on 25 August 1990 as a result of an attempted suicide by slashing his left wrist after consuming alcohol.
12 Recorded in the hospital records is the following:
“Suicide notes found on house door by wife/de facto. – reasons for attempting suicide. – noted that patient had consumed approximately ¾ bottle whiskey.”
13 Unfortunately, the contents of the suicide notes are not known.
14 You began using marijuana at the age of 13 after returning to live with your mother. Thereafter your abuse of cannabis increased, you played truant and commenced to run away from home and “couch surfed” and relied upon accommodation until you were aged approximately 17 years.
15 It was put that at about 15 years of age you commenced to inject amphetamines and binge heavily on alcohol at least two to three times per week. Despite this, having left school at the end of Year 9 when aged 15 years, you commenced an apprenticeship as a bricklayer and completed your apprenticeship and worked a further four years as a tradesman bricklayer. It was whilst as an apprentice bricklayer that you first appeared in the Frankston Magistrates’ Court aged 17 years in July of 1996.
16 Mr Melasecca, solicitor who appeared on your behalf, relied upon Bugmy v R [2013] HCA 37 to base a submission that I should mitigate your sentence owing to your childhood experiences. Accepting as I do that you were abused sexually as a child, to my mind your upbringing cannot be described as producing an environment of “profound childhood depravation”. However I take into account the circumstances of your upbringing as a child and the fact that you were sexually abused during your childhood and its role in making the person that you are today.
17 In 2000 when you were aged about 22 years, you began a relationship with a woman named Eleanor[2] to whom you had two children, being Aaron[3] born in 2002, and Ross[4] born in 2005. Your relationship with Eleanor ended in 2005.
[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
18 In 2007 you commenced a relationship with Katie Norman[5] and together have two children, Eddie[6] born in 2007 and Dom[7] born in 2010.
[5] A pseudonym
[6] A pseudonym
[7] A pseudonym
19 In respect to your children Aaron and Ross, you maintained contact with them to some extent between 2005 and 2009 but by 2009 you had ceased any contact with them and have not had any contact with them since that time.
20 In 2010 your relationship with Katie Norman ended and you commenced a relationship with a woman named Melanie. It was put to me that this was a drug-fuelled relationship that lasted approximately seven years. It was also put to me that about that time you commenced to use methylamphetamine as well as cocaine and GHB.
21 In 2013 you ceased working then as a concreter and the following year, 2014, began a Bachelor of Applied Science.
22 On 13 March 2015, you were sentenced at the Melbourne County Court to 36 months’ imprisonment with a non-parole period of 24 months’ imprisonment for a multitude of offences which included possessing controlled weapons; being a prohibited person possessing a firearm; trafficking in methylamphetamine; possessing GHB and anabolic steroids amongst other drugs.
23 Whilst in prison in 2015 you were advised by your then partner, Katie, that your children, Eddie and Dom, had been sexually abused. It was put to me that you reacted to this information badly and were placed on suicide watch as a result of an attempted suicide by cutting your wrists.
24 By reference to Exhibit 9, an email from Detective Senior Sergeant Healey concerning the investigation into the allegation that your children had been the subject of a sexual assault, Detective Senior Sergeant Healey reported that video and recorded evidence interviews were conducted with each of your two sons. Your son, Dom who was four years of age at the time and the alleged victim of the sexual misconduct, was unsurprisingly unable to particularise any offending. Your son, Dom, asserted that his older brother, Eddie, had been present at the time of the abuse, however when interviewed Eddie told investigators that he did not see anything occur. Accordingly, no brief was authorised for prosecution.
25 Upon release from prison in 2016, you were picked up by your father who took you home and later that day he died of a heart attack in your presence. It was put on your behalf that you were devastated by this and returned to the use of drugs, having been abstinent from them whilst in custody.
26 In 2018 you commenced a relationship with a woman named Loretta[8] who had a child from a previous relationship, Justin[9], who is now aged seven years. Justin is autistic and could be described as a “special needs child”.
[8] A pseudonym
[9] A pseudonym
27 In February 2018 when you were released from prison, you moved into Loretta’s parents’ home. You exercised access to your sons, Eddie and Dom, who are currently subject to mental health care plans which became Exhibit 15 on the plea. In respect to the mental health care plans under the heading “Mental Status Examination”, in each field the two boys were described as normal.
28 Tendered as Exhibit 13 was a Department of Health and Human Services confidential report in respect of the two children, Eddie and Dom. A perusal of this document shows that at the time of your release from prison Katie Norman, the mother of your two children, Eddie and Dom, was residing with Derek Peters[10], with whom she had a child, Jerome[11], aged three years.
[10] A pseudonym
[11] A pseudonym
29 Despite the mental health care plans describing the mental status of each of Eddie and Dom as normal, contained within Exhibit 13 is information that describes that each of those two children were exposed to harm and that the author held concerns for them as a result of their mother’s deteriorating mental health, her alcohol and drug use, their exposure to family violence, and their parents’ continuing criminal offending. The author had concerns with
Mr Peters co-parenting the three children, Eddie, Dom and Jerome, and described Eddie as experiencing significant mental health concerns which resulted in self-harm and suicidal ideation. Each of the children are subject to a protection order as well as a “family preservation order”.
30 Ms Norman remains the custodial parent of each of the three children with assistance and ongoing support from workers from the Department of Health and Human Services subject to a series of differing conditions in respect of those who may have contact with the children including Katie Norman, Derek Peters and you.
31 On 14 March 2019, you were arrested in respect to the instant offending.
32 When your plea commenced on 7 August 2020, you had spent 512 days by way of pre‑sentence detention. Tendered as Exhibit 7 was a report from Ms Jo Beckett, drug counsellor. In Ms Beckett’s report she wrote that you self-referred to her in April this year and that you were hoping to work with her once you are released from prison. As at the date of her report, being 3 August 2020, she had been working with you for approximately four months. The means by which she consulted with you appears to have been by way of telephone and Ms Beckett offered counselling services on a seven day per week basis to you upon your release. Ms Beckett was called to give evidence on the first day of the plea and reiterated that upon release you would require intensive support. In addition, you would need to be abstinent from drugs. Ms Beckett had spoken to your partner, Loretta, several times and placed significant emphasis upon the fact that you had a stable relationship and a stable family. This statement must be viewed in the light of the long time that you have spent on remand and the further time that you will spend serving a sentence in respect to the instant offending.
33 Returning to family matters, you and Loretta have a child, Howard[12], who was born in October 2019, some seven months after your arrest. Howard suffers from pulmonary stenosis which will require ongoing monitoring and assessment. In addition, Howard is lactose intolerant and suffers from eczema and by reference to a report from the Hastings Family Medical Centre dated 31 January 2020, when Howard was but three months of age, he had by then been hospitalised on several occasions and had a history of poor weight gain, irritability and bleeding from stools.(See Exhibit 3) Your adoptive son, Justin, a child of a former partner, suffers from Autism Spectrum Disorder and is supported by funding through the National Disability Insurance Scheme. Justin suffers from childhood apraxia of speech which significantly impacts upon his ability to communicate effectively. Dr Meaghan Zervaas, paediatric speech pathologist whose report dated 31 July 2020 and formed part of Exhibit 3, opined:
“Justin will continue to require ongoing intensive allied health input to support his overall development.”
[12] A pseudonym
34 It was put on your behalf that you would be anxious in respect of each of Howard’s, Justin’s, Eddie’s and Dom’s health and wellbeing whilst you were in prison. It was submitted that this would make your time in prison difficult for you.
35 I was informed by Mr Melasecca that whilst on remand at the Melbourne Remand Centre, you had become a prison peer educator. However, on being moved to Marngoneet Prison, you were not permitted to perform the role of a peer educator until you had been sentenced.
36 In addition, Mr Melasecca relied upon the impact of the COVID‑19 pandemic upon prison conditions which you have been subject to since its outbreak and will remain subject to for some time to come yet.
37 Mr Melasecca also relied upon a number of references in respect of you that fly in the face of your criminal record. It may be that to your referees, you are a good friend, calm and gentle, genuine and a caring and loving and respectful partner to Loretta and, further, that Mr Cameron Rothwell is prepared to offer you work upon release and describes your conduct as “way out of character”, however you have a long criminal history and repeatedly lapse into crime.
38 Mr Melasecca submitted that you possessed the firearm seized by police for the purposes of committing suicide. Further, he submitted, that you attempted to commit suicide but the cartridge in the firearm misfired. As this would constitute a mitigating circumstance of your offending in respect of the firearm, I have to be satisfied on balance of probabilities that it is so. No evidence was called on this issue. Mr Melasecca simply relied upon your instructions given to him, Mr Armstrong and Ms Beckett. In the absence of evidence to support the narrative put to me by Mr Melasecca, I am unable to find the mitigating circumstance pressed upon me.
39 In respect of your mental health, although Mr Armstrong assessed you as suffering from a borderline personality disorder, Dr Deacon did not, but rather opined:
“Whilst it is difficult to retrospectively diagnosis (sic) a mental condition given his persistent drug use problem, it is likely that he has suffered a mixed depressive and anxiety disorder masked by illicit drug use.”
40 Later in his report of 2 August 2020, Dr Deacon opined:
“Mr Vartouhi’s mental health problems can possibly be considered to be germane to the offending; albeit they do not alone explain his decision to engage in drug dealing.”
41 During the course of the second day of the plea, it became apparent as a result of the contents of the reports of Dr Deacon and Mr Armstrong and the emphasis that Mr Melasecca placed upon the contents of those reports, that the authors would be required to give evidence.
42 In his report, Dr Deacon opined that you have no formal psychiatric history, although you have been prescribed the antidepressant, Mirtazapine since 2003. You told Dr Deacon that you had not been compliant with the use of that medication as your drug abuse escalated up to and including the time of your arrest. On giving evidence on Wednesday, 14 October 2020, Dr Deacon did not diagnose you as suffering from a borderline personality disorder, but he was of the opinion that you exhibited a number of traits consistent with such a diagnosis. Dr Deacon acknowledged the difficulties of distinguishing between any contribution that mental illness may have played in your offending and the role played in your offending by your long term drug abuse.
43 Dr Deacon gave evidence that your persistent drug use was likely to have compromised your mental health independent of any underlying personality disorder. Ultimately Dr Deacon was unable to “unscramble the egg” in respect to any underlying personality disorder that you may suffer from and your persistent abuse of methylamphetamine. Dr Deacon was unable to comment on whether you exhibited other traits consistent with a borderline personality disorder other than those that he observed and that the traits that he did observe may equally be related to substance abuse. However, I think it is plain, that whatever tag is used in respect of your psychiatric or psychological makeup, that you have a predisposition to the abuse of drugs.
44 In his report, Mr Armstrong opined that you suffer from a borderline personality disorder which was masked by your chronic substance abuse. He opined that their combination raised the issue of impaired functioning at the time of your offending. In his evidence, Mr Armstrong acknowledged that your chronic abuse of drugs muddied the waters in respect to an assessment of you and any role your personality disorder may have had in respect of your offending as your chronic drug abuse and borderline personality disorder were co-extensive.
45 Ultimately, whilst there appears to be some conflict between Dr Deacon and Mr Armstrong as to whether you suffer from a borderline personality disorder, there was agreement as to their inability to separate that condition from your chronic abuse of drugs. Mr Melasecca submitted that he was not relying on the nature of your problems as causative but rather the combined effect of your personality disorder and drug abuse reduced your ability to exercise appropriate judgment and make calm and rational choices. He did not submit that they were responsible for your drug trafficking.
46 On the basis of the evidence before me, I am unable to find that you suffer from a borderline personality disorder but even if I am wrong about that, I am unable to find to what extent, if any, it contributed to your offending as there is the complicating factor which is unable to be separated from any personality disorder that you may suffer from namely the role of your chronic abuse of drugs.
47 You entered your plea of guilty at an early stage in proceedings and are entitled to the benefits that flow to you from such a plea, namely that it is some evidence of your remorse and that it has utilitarian benefit. I assess your prospects for rehabilitation as poor and entirely dependent upon you being abstinent from drugs. In addition, should you suffer from a borderline personality disorder, then there are years of treatment ahead of you once you are released from prison. Whether you are committed to such a lengthy period of treatment is a matter of conjecture. You have been and will continue to be subject to the strictures that are imposed upon prisoners as a result of the COVID‑19 pandemic and you will suffer anxiety in respect to the wellbeing of your children whilst you are in prison.
48 You must be justly punished, your offending must be denounced and you must be specifically deterred from reoffending. In respect to the issue of general deterrence, I intend to moderate it to some extent as a result of your childhood experiences and the effects that they had on you as well as your depressive and anxiety disorder which combined with traits consistent with a borderline personality disorder.
49 Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
On Charge 1, trafficking in a drug of dependence, commercial quantity – 5 years’ imprisonment;
On Charge 2, trafficking in a drug of dependence – 3 years’ imprisonment;
On Charge 3, possess a drug of dependence, namely testosterone – 6 months’ imprisonment;
On Charge 4, possess a drug of dependence, namely cannabis - you are convicted and fined $250;
On Charge 5, prohibited person possess a firearm – 18 months’ imprisonment; and
On Charge 6, prohibited person possess a silencer – 9 months’ imprisonment.
50 I order that 1 year of the sentence imposed on Charge 2, together with 2 months of the sentence imposed on Charge 3, together with 6 months of the sentence imposed on Charge 5, together with 3 months of the sentence imposed on Charge 6, be served cumulatively upon each other and upon the sentence imposed on Charge 1 on the indictment. This results in a sentence of 6 years and 11 months’ imprisonment on the indictment.
51 In respect to the related summary offences, I sentence you as follows:
On Charge 6 – 6 months’ imprisonment’
On Charge 13 – 3 months’ imprisonment;
On Charge 16 – you are convicted and fined $500; and
On Charge 17 – you are convicted and fined $500.
52 I order that 2 months of the sentence imposed on Charge 6, together with
1 month of the sentence imposed on Charge 13 be served cumulatively upon each other and upon the sentence imposed upon on the indictment.
53 This results in a total effective sentence of 7 years and 2 months’ imprisonment and I fix the period of 5 years’ imprisonment as the period that you must serve before you will become eligible for parole.
54 I declare that you have spent 596 days by way of pre‑sentence detention.
55 Pursuant to s6AAA of the Sentencing Act 1991, I declare but for your plea of guilty I would have sentenced you to 10 years’ imprisonment with a non-parole period of 8 years’ imprisonment.
56 Gentlemen, is there anything arising out of the sentence?
57 MR PICKERING: No, Your Honour.
58 MR MELASECCA: Your Honour, I was wondering about whether - they are not my clients, Your Honour, but they exist. I am thinking about the children and the fact that the media exists and whether there is a need to protect them because of their age and restricting a publication, the comments in respect to the children that are the subject of care by DHHS, Your Honour, as an abundance of caution. Look, it's something that just came to mind as Your Honour was giving the sentence and no one has indicated that to us as an important feature but I notice the children are in their mid-teens and there's a fair bit going on and I'm referring specifically I suppose to Eddie and Dom, Your Honour.
59 HIS HONOUR: Yes, Mr Melasecca, well as all of these matters were raised in open court, the children were named in open court and they appear in each of the exhibits tendered in open court, I have some hesitance in respect of your application however I will consider it and if I deem it necessary I will use some form of naming the children independent or different in kind from their names. I can say no more presently.
60 MR MELASECCA: May it please Your Honour. There are no other matters, Your Honour.
61 HIS HONOUR: Thank you very much, Mr Melasecca. And I want to thank you, Mr Melasecca and you, Mr Pickering, for your assistance and patience throughout the plea.
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