Director of Public Prosecutions v Vurdu-Tsotras
[2020] VCC 1441
•10 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00323
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHERIF VURDU-TSOTRAS |
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JUDGE: | Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 September 2020 | |
DATE OF SENTENCE: | 10 September 2020 | |
CASE MAY BE CITED AS: | DPP v Vurdu-Tsotras | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1441 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sentence - Reckless Conduct Endangering Serious Injury - Trafficking in a Commercial Quantity of MDMA - Trafficking in a Drug of Dependence (Cocaine) - Possess a Drug of Dependence - Handling Stolen Goods - Category 2 offence - mandatory imprisonment unless exception made out no exception made out - application of R v Brown [2020] VSCA 212 - expanded Verdins principles not applicable - good prospects for rehabilitation already under way - early plea of guilty - imprisonment only available sentencing disposition
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Hannan | Office of Public Prosecutions |
| For the Accused | Mr P. Dunn Q.C. (for plea) Mr D. Georgiou (for sentence) | Melasecca, Kelly & Zayler |
HER HONOUR:
1 On the evening of 12 June 2019, you, Sherif Vurdu-Tsotras, drove your Audi RS3 at speeds of up to 200kph on the Eastern Freeway. You were then seen, still driving at excessive speed, on Springvale Road. By then, you were being followed by an unmarked police car, as well as the Air Wing. When forced to stop in traffic at the Canterbury Road intersection, the police car was beside you. Constable Connellan approached you, showed his police identification and reached into your car in an attempt to remove the key or turn it off.
2 As he was doing this, the lights turned green and you accelerated quickly away, narrowly missing the car in front and the police car. Constable Connellan jumped back in time to avoid being dragged along or struck, as you travelled at speed through the intersection and out of sight. Your response was such that it was deemed too unsafe to pursue you by car.
3 Air Wing surveillance continued however, and you were seen travelling at speeds up to 170kph before abandoning the car in a side street. It is this conduct which constitutes Charge 1 of reckless conduct endangering serious injury, to which you have pleaded guilty.
4 When you abandoned your car, you walked quickly away, taking a bag with you. You went up the driveway of a house nearby and hid the bag underneath a car in the driveway. You were found a short time later by police, hiding between the car and the garage.
5 The bag, a Louis Vuitton, was searched, and was found to contain two bags of ecstasy tablets, two bags of cocaine and 23g of magic mushrooms.
6 When police executed a search warrant at your address the next day, more drugs were found in a locked safe in your bedroom, including:
a) three bags containing approximately 264g of MDMA;
b) a further two bags containing approximately 445g of MDMA in purple tablets stamped ‘YouTube’;
c) a bag containing five cannabis seeds;
d) scales, deal bags and a book by Tom Wainwright called “How To Run a Drug Cartel”; and
e) a stolen Victorian driver's licence and Medicare card in another person’s name.
7 When interviewed after arrest, you admitted you were the driver of the car, that your driving was unsafe and that you had never held a driver’s licence. You said you had driven off when approached by Constable Connellan because you thought the police badge he showed you was fake. You admitted that the Louis Vuitton bag was yours and contained drugs, but you said they were all for your own use. When interviewed the next day after the execution of the search warrant, you made no comment in respect of the drugs or other items found in the safe.
8 In total there was 807.8g of substance containing MDMA, with varying levels of purity ranging from 28% (50g) to 78% (200g). The total quantity of pure MDMA was found to be 393.35g. The commercial quantity of pure MDMA as listed in Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) is 100g. The commercial quantity of MDMA when combined, or cut, as listed in Schedule 11 is 500g.
9 The two bags of cocaine weighed 20.9g. Analysis revealed a 62% purity. The traffickable amount of cocaine is listed in Schedule 11 as 3g. The quantity, although well above a traffickable amount, falls well short of a commercial quantity, which is 250g pure or 500g combined.
10 Charge 2, to which you have pleaded guilty, is a charge of trafficking by possession for sale in a commercial quantity of MDMA. That quantity is based on the combined amount of MDMA found in your bag and in the safe. Charge 3, to which you have pleaded guilty, is a charge of trafficking by possession for sale of the cocaine found in the bag.
11 You have also pleaded guilty to two charges of possession of a drug of dependence, Charge 4 relating to the magic mushrooms found in your bag, and Charge 5, possession of the cannabis seeds found in the safe.
12 You have also pleaded guilty to handling stolen goods as a result of the possession of the stolen identity documents, the Medicare card and drivers licence found in your safe.
13 Finally, acknowledging, as you did that you have never held a driver’s licence, you have pleaded guilty to the related summary offence of unlicensed driving. That relates obviously to your driving on the night that you were arrested.
14 The maximum penalties for these offences are one measure of their seriousness:
a) reckless conduct endangering serious injury: a maximum of 5 years imprisonment;
b)
traffick in a commercial quantity of a drug of dependence: a maximum of
25 years imprisonment;
c) traffick in a drug of dependence: 15 years imprisonment;
d) possessing a drug of dependence: 1 year in circumstances where, as here, I am satisfied, on the balance of probabilities, that the offence was not committed for any purpose related to trafficking;
e) 15 years imprisonment for handling stolen goods; and
f) for a charge of unlicensed driving where, as here, the offender has never held a licence, 60 penalty units or 6 months imprisonment.
15 Charge 2, the commercial quantity trafficking, is a Category 2 offence pursuant to s 5(2H) of the Sentencing Act 1991 (Vic). A term of imprisonment, not accompanied by a community correction order, is mandatory unless an offender falls within one of the prescribed exceptions.
16 Although no one was injured because of your driving, the charge of reckless conduct endangering serious injury is, in my view, a serious example of its type. It involved driving for a protracted period, on a freeway and then a major thoroughfare, both of which carry high volumes of traffic, and then in a residential area, at night. Your speed on the freeway and Springvale Road was at times over double the speed limit. Your conduct in driving off from the lights under rapid acceleration, when a police officer was leaning into your car through an open window and other cars were so close that you only just avoided colliding with them as you drove away, in the way you did was reprehensible. That no one was killed or injured is due to good fortune and nothing more. No concern for the welfare and safety of others, no care, or skill on your part played any role in sparing those in your vicinity from risk of harm. The same observation applies to the speed at which you drove on the freeway and on Springvale Road.
17 The trafficking charges are brought, as noted, on the basis of possession for sale. You told police, and maintained before me, despite your guilty pleas, that you possessed all the drugs found on you, or in your home for your own use. In my view, the quantities of MDMA and cocaine in your bag, as well as the quantity of MDMA in the safe, of itself, makes that implausible. And by your pleas of guilty to trafficking, on the basis of possession for sale, you are admitting possession for sale.
18 Even if, as you assert, you used breathtakingly high amounts of cocaine and MDMA yourself and had the means to pay for large quantities at a time, your pleas to Charges 2 and 3 acknowledge your possession was not confined to consuming everything that you bought.
19 As your own history makes clear, abuse of illegal drugs causes misery, not only to users, but to their families, their friends and to the broader community. Individuals, families, friends and the broader community are all too often exposed to the at times terrible and terrifying offences that people who, because of substance abuse, commit, whether it is to finance their own use or because of the influence of drugs on them. People, even if they are themselves users, who lend themselves to trade in drugs and profit, either by making money, or by subsidising the cost of their own use, must understand they face stern punishment to deter them and to deter others like-minded if and when caught.
20 Although the weight of the drugs is not in itself determinative of the sentences I will ultimately impose upon you for the trafficking charges, it is one factor to take into account. It is worth noting in that context that, in respect of the MDMA, you had almost four times more than the threshold amount of a pure commercial quantity (or 61% more than the threshold amount of a combined commercial quantity). The quantity of cocaine was approximately seven times more than the prescribed threshold amount for cut cocaine.
21 By comparison, the other indictable charges to which you have pleaded guilty, the two possession charges and the handling, are at the lower end of gravity for offences of their type.
22 It is clear that, subject to considerations personal to you, so far as Charges 1, 2 and 3 are concerned, that is the reckless conduct endangering serious injury and the two trafficking charges, denunciation and deterrence, both general and specific and just punishment are important sentencing considerations.
23 There is only one court appearance on your criminal history. It is for unlicensed driving and failing to accompany police for breath analysis. You were dealt with for those offences a little over 12 months before committing these offences. Given the nature of your driving for which I come to sentence you, the fact that you have never held a licence and this being your second offence, denunciation, deterrence and just punishment are also significant in respect of the unlicensed driving charge.
24 The fact that the earlier driving charges were dealt with in the Children’s Court and resulted in your release on a 12 month good behaviour bond, without conviction, brings home how young you were at the time of the commission of these offences and what a serious escalation in criminal behaviour they represent. This is clearly high-level entry into the adult criminal justice system for one so young. You were 19 at the time that you committed these offences and you are only 20 now.
25 What, apart from your youth, is relied on to temper the weight to be given to denunciation, deterrence and just punishment and what, specifically was relied on to bring your circumstances within an exception to s 5(2H), for the purposes of the sentence on Charge 2?
26 In short, your youth, a childhood marred by trauma, loss, abuse, neglect and early introduction to substance abuse, which in turn is directly related to the offending and powerful evidence of rehabilitation since arrest.
27 The starting point is your youth. Apart from the fact that this is your second unlicensed driving offence, you are, for the indictable offences, properly to be regarded as a first offender. The regular references to Mills[1] in this court do not diminish its importance. Mills stands for the proposition that, for a youthful first offender, rehabilitation generally carries more weight than it would for an older offender and tempers the weight that would generally be given to general deterrence for an older offender. I accept that clearly applies in this case.
[1]R v Mills (1998) 4 VR 235.
28 Turning then to the evidence of your upbringing and history of substance abuse. You are the only child of your parents’ marriage. Your mother already had a daughter and your father had three sons by the time you were born. Until you were 13, you and your sister lived with your father and mother. Your parents’ relationship was described as volatile. Your father was an ice addict and you were from an early age exposed to his drug use and the violent and anti-social behaviours flowing from that. He was frequently violent to your mother, often in your presence, and that of your sister. You were unhappy and disruptive at school and you were moved or expelled a number of times due to bullying and poor behaviour. You have also reported being groomed and sexually abused by the older brother of a friend between 8 and 12.
29 As if that was not enough, you were only 13 when your mother died. That dreadful loss was made worse, not only because she was the source of stability and protection for you and your sister, but because of the circumstances of her death. As I understand it, a failure to diagnose an aortic aneurism following an emergency admission to hospital resulted in her discharge. You and your sister witnessed her subsequent collapse at home and the inability of the paramedics that you had called to revive her.
30 For six months after your mother’s death, the household was composed of your father, your sister, who was by then 19, and you. It appears to have been, at its kindest or most merciful description, an emotionally impoverished environment. You began, with your father’s active encouragement or enabling, to smoke cannabis. Your sister moved out. She said, in her evidence, that she feared for her own mental health if she stayed and would have taken you with her if she could.
31 After she left, your drug use escalated and your effective engagement in school, already sporadic, came to an end. You reported to the psychologist, Luke Armstrong, when he assessed you in late June 2019 for the purposes of an application that you be bailed into drug rehabilitation, that, by the age 16, you had moved from cannabis to ecstasy, because obsessive/compulsive behaviours which you had already been displaying were worsening, something that you attributed to the cannabis use. You soon added cocaine to the mix and reported that, by age 17, you were using 25 ecstasy pills a weekend and 7g of cocaine per week. You reported that that increased to daily use of cocaine, up to 28g per week, and between 50 and 100 ecstasy pills per week, using ecstasy at least on weekends and sometimes during the week as well.
32 You made attempts, during that time, to return to school, on my count three separate attempts, but, not surprisingly, your drug use and your home life interfered with your capacity to sustain engagement at school. You tried working and were able to secure, but not maintain, jobs. You moved away from your father, living for a time with a step-brother and for a time with your sister, but your behaviour was, you acknowledge, appalling and life continued to revolve around your drug use. You also acknowledge you were, at that time, trafficking, reportedly, to support your own habit.
33 When you were 18, your father decided that the two of you should go to Cyprus (where he was born) to become drug-free. You stayed there together for some months and each of you apparently achieved that aim. You, however, returned to Australia some months later, when you received a substantial sum (in excess of $400,000) as compensation, following a claim against the hospital which had discharged your mother before her death.
34 Unfortunately, you were unable to sustain a drug free life on your return and I am told that you squandered the payout on drugs, a number of expensive cars, including the Audi you were driving on the night, shouting your friends expensive dinners and a deposit on a home. I was told you returned to the same high levels of consumption of cocaine and ecstasy that you had been previously using and that you were purchasing in large quantities, because you could afford to.
35 In his initial report prepared weeks after your arrest, and whilst you were in custody, Mr Armstrong noted that you presented with very complex mental health problems. It was his opinion that you met the criteria for stimulant use disorder and presented with features of post-traumatic stress disorder (PTSD), obsessive-compulsive disorder (OCD) and of a disturbed personality. Mr Armstrong noted that you had conferred with a psychologist that you had been referred to, but only briefly engaged with, at the age of 16. He reported that she had then assessed you as suffering PTSD and OCD. It was Mr Armstrong's view at the time of his first assessment that those symptoms of PTSD and OCD were continuing.
36 This then is the background and the contemporaneous assessment of your presentation only weeks after committing the offences.
37 After 26 days on remand, you were released on bail to residential rehabilitation provided by Arrow Health. That you were able to do so is as a result of the extraordinary assistance provided by your sister. She is indeed a remarkable woman. She too had received compensation following your mother’s death. Hers was a much more modest sum, I was told.
38 She had not squandered hers on drugs, fancy cars or a high life. At the time of your arrest, she was about to give birth to her first child and she was looking forward to using the sum that she had received for the benefit of her child and her own life. Instead, without hesitation, she used it to pay for the rehabilitation services that Arrow could offer you.
39 You repaid the trust that she placed in you. You successfully completed the three-month residential component and transitioned successfully to intensive outpatient attendance. Despite the disruption then caused by COVID-19, your engagement with continuing rehabilitation even after that has been exemplary. You have submitted to regular drug testing and have demonstrated that you remain drug free. You have obtained employment and maintained it, you have taken up going to the gym and personal training, and you have maintained the relationship you had started, shortly before your arrest, with your girlfriend. She was not, it would appear, part of your drug milieu. She had and continues to run her own beauty business and is a powerful support for maintaining your new life.
40 You are, I accept, now living a very different life from the one you were brought up in, and the one that you were living before your arrest. You are living, something that you identify you have aspired to throughout your childhood and during those reckless adolescent or young adult years, a normal life, with education, a job, a partner and a loving family, and prosocial friends and activities.
41 The contrast between the substance abusing and anti-social young man you were when arrested and the young man who presented on the plea is a testament to what timely intervention can achieve if someone is able to pay for it and if the user is willing to engage and has the strength to be able to maintain their commitment, all factors present here.
42 That you have strong support from your family, your sister and your partner, counts very much in your favour. Although the unfailing love and support of your sister throughout your life, and the more recent support of your partner in the early months of that relationship before your arrest, were clearly things that you valued, they did not deter you from offending. However, I accept they are positive factors, should you continue to avail yourself of them, in assessing your prospects for rehabilitation.
43 Impressive testimonials from your sister, your partner and your sponsor from Arrow all attest to that. So too does the very articulate letter you wrote about your life story, your hopes and aspirations and the journey you have been on.
44 It can properly be said that over the last 12 months, or just over 12 months, you have demonstrated a capacity to sustain a drug free and offence free life and to make and sustain positive changes in your life.
45 These matters clearly operate to significantly moderate the sentence otherwise appropriate, by reason of your youth and immaturity at the time and the efforts you have made at rehabilitation to date. So, too, does the trauma of your upbringing, and the correlation between that trauma and your drug use, and your demonstrated capacity to change when offered the opportunity. The sentences I impose should not only encourage rehabilitation, but acknowledge and give credit to the considerable achievements you have made in maintaining a drug free life for over 12 months, in developing thoughtful and meaningful relationships with your partner and sister, in obtaining and maintaining employment and furthering your education. Those efforts at rehabilitation would be a considerable achievement for a young man who came from a stable, supportive family background. It is much more deserving of recognition, given your history of childhood trauma.
46 You are also entitled to a reduction in the sentence otherwise appropriate by reason of your guilty pleas, the very early stage at which they were entered and the impact of COVID-19.
47 I accept in the circumstances, not only that the pleas carry weight for the early stage at which they are entered, for the utilitarian value and for advancing the interests of justice, but that they too are further evidence of remorse, that is of acknowledging your guilt and taking responsibility for your conduct. But for that matter I have identified of your maintaining the possession of all of the drugs was for your own use, otherwise I accept there is very clear evidence of taking responsibility for your conduct.
48 I accept that your guilty pleas have value, in addition to the normal value that they would carry, because of the COVID-19 pandemic, in advancing the course of justice. You have saved the time and cost of trial and you have proceeded to sentence now, not taking advantage of the inevitable delay in trials or many pleas to extend your time on bail before sentence. I accept that the matters referred to by the Court of Appeal in respect of the effects of COVID-19 will apply to you in your circumstances.
49 I accept also that there is an added burden of imprisonment currently due to the COVID-19 pandemic. The lockdowns associated with it, the reduction in programs available to those serving time, the restricted means of being able to communicate with friends and family once in custody and the fear of an outbreak in prison are additional hardships associated with imprisonment and which also, in my view, should operate to reduce the sentence otherwise appropriate. Those of us who are at liberty are better placed to be able to make our own decisions about how best to protect ourselves; those in custody cannot and I accept that this will to be an additional hardship of imprisonment that I should take into account.
50 None of those matters that I have dealt with are contentious.
51 The real issue in this plea is the applicability of the principles in Verdins,[2] that is the significance to the assessment of your moral culpability of any impairment of your mental functioning, and specifically, in relation to Charge 2, in determining whether you fell within an exception to s 5(2H) by reason of impaired mental functioning.
[2]R v Verdins; Buckley; Vo (2007) 16 VR 269.
52 Although the written submissions also sought to rely on the exception in s 5(2H)(e) to mandatory imprisonment legislated by s 5(2H), the exception of substantial and compelling circumstances which were exceptional and rare, that was not pressed in oral submissions. Mr Dunn ultimately acknowledged that you were unable to discharge your onus of establishing, on the balance of probabilities, that your circumstances warranted that characterisation in the very narrow way that it is framed by the legislation.
53 Mr Armstrong, in his first report, was of the opinion that you were of at least average intelligence and that there was no evidence of a major depressive or anxiety disorder. As noted, you presented then with features of PTSD, OCD and features of a disturbed personality. In Mr Armstrong's view, the manifestation of the PTSD symptoms were compounded by your experience of developmental trauma, specifically: disturbed attachment, familial and domestic violence and sexual abuse. He considered your experience of a disturbed upbringing was consistent with the emergence of a borderline personality. However, he noted that, as you are so young, he was reluctant to diagnose you with borderline personality disorder at that point in time. He warned that if you continued without intense treatment you would no doubt fulfil the criteria for a diagnosis of borderline personality disorder, which would then be defined as severe.
54 In the lead up to the plea hearing and following your successful engagement with the Arrow drug rehabilitation program, Mr Armstrong assessed you again. His second report is dated 17 August 2020, which was the date of the assessment. It was his opinion then that none of the psychopathology described in your initial psychological profile was present in your current profile. Your current profile suggested that the serious mental health problems identified in his June 2019 report were in remission. Specifically, he wrote that he was of the opinion that the previous diagnoses of PTSD, OCD and personality disorder were now in remission. He was also of the view that the diagnosis of stimulant use disorder was also in sustained remission, as a function of the significant treatment engagement exceeding 12 months. In other words, the intense treatment which he had recommended had successfully arrested the development of borderline personality disorder.
55 It is important to note that, although in his second report Mr Armstrong referred to a previous diagnosis of personality disorder, a careful reading of that first report reveals that he had not in fact committed to a diagnosis of personality disorder at that stage. Rather, he had sounded a warning that, if your substance abuse were not treated, there was a real risk of it developing or, if your general mental health problems, so closely related as they were to your substance abuse, were not treated, there was a real risk of it developing.
56 Just days before the plea was scheduled to be heard, the Court of Appeal delivered its five-member Bench decision in R v Brown [2020] VSCA 212. In that decision, the court overturned its previous decision in O’Neill,[3] to the effect that Verdins considerations were always inapplicable to personality disorders.
[3]R v O'Neill (2015) 47 VR 395.
57 Relevantly for these purposes, it said:
whether an offender’s personality disorder engaged any of the Verdins principles should depend not on the particular diagnostic label attached to it but on what the expert evidence before the sentencing court showed about how the condition affected the offender’s mental functioning at the time of the offending and/or about how it would affect the offender in the future.
An offender diagnosed with a personality disorder should be treated as in no different position from any other offender who seeks to rely on impairment of mental functioning as mitigating sentence in one or other of the ways identified in Verdins.[4]
[4]R v Brown [2020] VSCA 212, [5] – [6].
58 And, later:
What the sentencing judge needs is not a diagnostic label but a clear well founded expert opinion as to the nature and extent of the offender's impairment of mental functioning, and so far as it can be assessed, of its likely impact on the offender at the time of the offending and/or in the foreseeable future.[5]
[5]Ibid [61].
59 It cited[6] with approval the following passage from O’Neill:
Careful consideration needs to be given to whether the evidence establishes that mental capacity has been impaired and which of the circumstances set out Verdins are engaged. It requires a rigorous evaluation of the evidence.[7]
[6]Ibid [62].
[7]R v O'Neill (2015) 47 VR 395, [68].
60 Mr Armstrong was asked to provide a further report as a result of the decision in Brown. His third report is dated 29 August 2020. Dealing with the charge of reckless conduct endangering serious injury, Mr Armstrong said:
Specifically I suspect that his reckless behaviour at the time of the offending reflected a form of suicide behaviour. In the very least at the time of the offending, Mr Vurdu-Tsotras, ceased to truly appreciate the gravity of his recklessness. A situation compounded also by drug intoxication.
61 I should note that, although in his first and second reports Mr Armstrong had noted that you had often struggled with suicidal ideation, you had not so characterised your conduct in respect of the driving.
62 Dealing with the drug charges, including Charge 2, the commercial quantity trafficking to which s 5(2H) applies, Mr Armstrong said:
Your client found himself in a situation which evolved over time. He became dependent on a large amount of not in-expensive substances required to counter withdrawal symptoms and escalating drug tolerance. Your client was compelled to use substances as a means to self-medicating his complex mental health problems which emerged early in his emotional development. Your client relied, in fact craved drugs, acquired through any means, to singularly relieve a spectrum of severe mental disorders. Mr Vurdu-Tsotras was also unemployable, a consequence of a severe addiction and unstable mental health. Not surprisingly, the large concoction of drugs required to self-medicate exceeded his means. It is my view the drug intoxication also added to further impairing your client to exercise appropriate judgement at the time of the offending. These factors in my opinion impaired Mr Vurdu-Tsotras’ capacity to problem solve and solve out of an escalating pattern of drug offending.
63
It was conceded by Mr Dunn, following Mr Hannan’s cross-examination of
Mr Armstrong, there was no evidentiary foundation for either the conclusion the driving was a form of suicide behaviour or that the drug trafficking was occasioned by an inability to fund your drug habit from your own means. It was contrary to what you said to the police at the time of interview, to what you said to Mr Armstrong at the time of the initial assessment and to the instructions Mr Dunn put to me, that is in relation to the drug trafficking.
64 Specifically, it was never suggested by you, and there is no other evidence to suggest, that your driving was a form of suicidal behaviour. You have consistently, since your initial arrest by the police, denied trafficking. It was specifically put to me on the plea that, despite your pleas of guilty to Charges 2 and 3, you continued to deny trafficking and maintained your position that the drugs in your possession were all for your own use and were funded by your compensation payout.
65 This then is a good example of the need to subject the evidence upon which opinions as to the applicability of Verdins is based to rigorous scrutiny.
66 That is not to say that your traumatic developmental history, the development of severe personality disturbance and resultant substance abuse problems are not relevant for sentencing purposes. You were deprived of the security, stability, love and support a child should expect to receive from their parents. Your childhood was blighted by the traumatic events to which you were exposed, none of which were your fault, and your early exposure to substance abuse by your father.
67 But the evidence fails to establish any causal connection between your offending which would enliven the first limb of Verdins, so as to significantly reduce your moral culpability or the weight therefore to be attached to general deterrence.
68 Similarly, Mr Armstrong does not provide an evidentiary foundation for finding that, at the time of the commission of the offence of commercial quantity trafficking, you had impaired mental functioning that was linked to the trafficking, which substantially and materially reduced your culpability. Following the cross-examination of Mr Armstrong, Mr Dunn acknowledged that the evidence did not support a finding in respect of Charge 2 that the first limb of Verdins was engaged, or, in respect of Charge 2, that the exception in s 5(2H)(c)(i) was made out.
69 That you suffered such disadvantage in your childhood makes, as I have said, your efforts at rehabilitation all the more deserving of credit for sentencing purposes. And the avoidance of the development of a severe personality disorder is a positive factor when assessing your prospects for rehabilitation.
70 Having regard however to the matters I have recounted which operate in your favour and to the evidence of your mental functioning at the time of the offending, Mr Dunn’s alternative submission that there should be a considerable gap between the head sentence and the non-parole period is clearly well supported by the evidence and the authorities. However, I do not consider that your circumstances can bring you within an exception to s 5(2H), therefore permitting me to impose a sentence as low as 12 months or less combined with a community correction order. The offending overall is simply too serious and you do not fall within the exception.
71 I consider though, in looking at the alternative submission of moderating both the head sentence and the non-parole period significantly by reason of these factors, that your prospects for rehabilitation should be rated as very good and your youth is a powerful consideration supporting that.
72 In fixing on the sentences, I also take into account the time that you spent since release on bail in intensive drug rehabilitation, both as an inpatient and as an intensive outpatient, in that general Renzella sense.[8]
[8]R v Renzella [1997] 2 VR 88.
73 Finally, I should note the provision of competing bundles of comparable cases. As acknowledged, all cases are determined on their own facts and circumstances and they are of guidance only. Each case must be considered on its own facts and circumstances and current sentencing practices are only one factor that I must take into account. I have done my best however to synthesise all these factors and to impose a sentence that I consider to be the lowest possible justifiable in the circumstances.
74 Can you now please stand, Mr Vurdu-Tsotras? Sherif Vurdu-Tsotras, on the charges to which you have pleaded guilty, that is the six charges on the indictment and the one related summary offence, you are convicted.
75 On Charge 1, of reckless conduct endangering serious injury, you are sentenced to be imprisoned for a period of two years.
76 On Charge 2, of trafficking in a commercial quantity of MDMA, you are sentenced to be imprisoned for a period of three years.
77 On Charge 3, of trafficking in a drug of dependence, Cocaine, you are sentenced to be imprisoned for a period of one year.
78 On each of Charges 4 and 5, possession of drugs of dependence, magic mushrooms and Cannabis, you are convicted and discharged.
79 On Charge 6, of handling stolen goods, you are sentenced to be imprisoned for a period of one month.
80 On the related summary offence, Charge 14, of unlicensed driving, you are sentenced to be imprisoned for a period of two months.
81 I direct that 12 months of the sentence on Charge 1 and the whole of the sentence on Charge 6 and the whole of the sentence on the related summary offence be served cumulatively upon each other and upon Charge 2, the base sentence.
82 That makes a total effective sentence of four years and three months.
83 I fix the period of two years as that which you must serve before being eligible for parole and declare that you have spent 26 days in pre-sentence detention which is to be counted and reckoned as part of the sentence already served.
84 On Charge 1 and the related summary offence of unlicensed driving, all licences held by you are cancelled and you are disqualified from obtaining a further licence for a period of two years effective from today.
85 I make the disposal orders sought.
86 I declare pursuant to s 6AAA of the Sentencing Act that, but for your pleas of guilty, I would have sentenced you to a total effective sentence of seven years and three months and fixed a non-parole period of four years. However, the sentence, Mr Vurdu-Tsotras, is the four years and three months with a two-year non-parole period.
87 HER HONOUR: Thank you. Are the arithmetics correct and no further orders required to be made?
88 MR HANNAN: Correct, your Honour.
89 HER HONOUR: Thank you. Mr Georgiou?
90 MR GEORGIOU: Yes, your Honour, that is correct.
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