Director of Public Prosecutions v Zotos

[2014] VCC 1963

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00118

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANGELO ZOTOS

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2014
DATE OF SENTENCE:	21 November 2014
CASE MAY BE CITED AS:	DPP v ZOTOS
MEDIUM NEUTRAL CITATION:	[2014] VCC 1963

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C Youseef
For the Accused	Ms M Walker

HIS HONOUR: 

1You can remain seated, Mr Zotos.

2On 30 April, you pleaded guilty to one charge of attempting to pervert the course of justice.  This offence carries a maximum penalty of 25 years' imprisonment.  On that day you admitted your prior criminal history, which was attached to Indictment No. D13742310.  On 17 November 2014 a plea in mitigation of your offending was heard in this court. 

3I will now turn to the offending. 

4The background to this offence is that you have an extensive criminal record for dishonesty offences.  In 2013 you were charged by police with a number of offences of dishonesty relating to the theft of credit cards, cheque books and other items.  You misappropriated a total of $11,000 in cash and goods from a number of victims.  You made admissions to police and that matter was resolved.

5On the day of your court hearing, which was 25 November 2013, you appeared before the Melbourne Magistrates' Court to plead guilty to the charges and for breaching a community corrections order which had been imposed on you on 27 September 2012 on charges of burglary, theft, going equipped to steal and using a drugs of dependence.  You were represented by a legal practitioner. 

6During the course of that plea hearing, your counsel tendered two references and four Anglicare Parent Zone course certificates on your behalf and sought to rely upon them in mitigation of your sentence in that case.

7The first reference was purportedly authored and signed by a Ms Marjorie Lapworth from Warrandyte Housing and Support Services.  Ms Lapworth purportedly stated (referring to you Mr Zotos):

"Came to us approximately nine months ago and has been doing individual counselling with myself, as well as weekly urine analysis.  Angelo has come a long way with not only his counselling, but with himself." 

8In the last paragraph of that reference, Ms Lapworth purportedly stated that you had made tremendous progress within your present life, "and I would hope to see him start over again in life, as he may never have this opportunity again, especially with his plumbing business, the way it has excelled, and what he went through with his newborn, and now he has finally got his son out of foster care and has finally started getting their bonds back as father and son."

9In tendering the reference, your counsel stated to the magistrate, "He re-engaged with Marjorie about nine months ago and she's written a letter.  So again, it is very positive from his perspective that he knew he was going into a period of change with his son being born and so he wanted to make sure that he has someone that he can go to for support.  So he's been seeing her on an ongoing basis for the last night months.  She's providing him with counselling."

10Ms Lapworth later made a statement to police stating she did not write the reference and was in utter disbelief when she read it.  She stated she had been involved with you since 1996 but had not had counselling sessions with you and, in fact, had not seen you for a very long time.  She was unaware of your offer of services other than one abandoned attempt by you to install a heating device, and described the last paragraph as all fiction.

11The second reference was purportedly authored and signed by Dr David Ross from Nunawading Medical Clinic.  I note that he is still your general practitioner.  The reference claims that you had been participating in a volunteer Narcotics Anonymous program as well as individual counselling and had "come a very long way with his demons and struggles and has gained great insight into his behaviour patterns."

12Dr Ross later made a statement to police stating he did not author or sign the reference, nor did he give permission for its creation. 

13In tendering the reference, your counsel stated to the magistrate, "He's also reached out to Dr David Ross and he's been participating in the Nunawading Medical Clinic program, which involves volunteer NA and also individual counselling with this doctor."

14Your counsel then went on to say, "It's positive that he's been able to reach out and engage with people in the community.  It just demonstrates, Your Honour, that he's genuine about wanting to change."

15Counsel then stated, "He's also completed four courses.  These were ones recommended to him under the community corrections order, the parenting program.  He completed the behaviour, discipline versus punishment rules, consequences and dealing with feelings courses through Anglicare, and I have those certificates."  Your counsel then handed up the four documents purporting to be the course certificates. 

16In oral submissions the police prosecutor requested the opportunity to check whether you had completed the courses.  The magistrate made an order deferring sentence on 20 December 2013 and the references and the course brochures were given to the police prosecutor.  Your bail was extended to 20 December 2013.

17The prosecutor made enquiries with the purported authors of the references and an Anglicare representative and established that the references were fake and that you had not attended any of the four courses.

18In December 2013 police attended at your parents' home in Blackburn North.  Upon arrival, you were seen jumping out of the bedroom window and were arrested in the back yard of the premises.  You were conveyed to the Nunawading Police Station but could not be interviewed due to your uncooperative and abusive behaviour.  You were then remanded in custody.

19You remained in custody for 141 days until the day you pleaded guilty to this charge and then you were released on bail.  You have subsequently completed the CISP program for the Magistrates' Court charges which had been finalised on 14 November 2014.

20The magistrate, who was the person you sought to deceive and undermine by the offending in this case, on 14 November 2014, sentenced you to 12 months' imprisonment suspended wholly for a period of 18 months.  At the same hearing the magistrate imposed a four month term of imprisonment wholly suspended for six months.  These sentences were imposed after the magistrate had deferred sentencing you, in effect, from 25 November 2013 until 14 November 2014.  At the time of sentencing you, the magistrate knew of your attempted deception upon the court and the course of justice when you were sentenced.

21The conduct of these proceedings.

22After your arrest on 11 December 2013 and the completion of the investigation, you pleaded guilty to this charge at committal mention on 23 January 2014.  You remained in custody until 30 April 2014 for your arraignment.  You were then granted bail and have been at liberty since that date.  You have not been charged with any offences between 30 April 2013 and now.

23Your counsel informed the court that you have outstanding charges from alleged offending in October 2013.  These charges are defended and are listed for hearing on 8 December 2014.

24I will turn to your personal circumstances.

25I have been told a little of your personal circumstances.  You are 41 years old.  You commenced a plumbing apprenticeship at the age of 15.  You are a qualified plumber.  At age 22 you met and married the mother of your two

26children.  You submitted your wife introduced you to heroin.  The reality is that at a young age you decided to use heroin and have not been able to master it since then.  You have two children aged 17 and 15.  Due to your ex-wife's addiction and your criminal offending and addiction, your children were placed in foster care at an early age.  The eldest child is now living independently and pursuing a trade.  Your youngest child is still in foster care and attends school.  You have limited contact with those children.

27Your parents are still alive and attended court to support you at the time of your plea.  I note that they are here again today.  You have lived with them in between times of imprisonment.  No doubt you have subjected them to the full force of your uncontrolled addiction over the years.

28You currently live in a de facto relationship with Katherine Chandler.  Ms Chandler gave evidence on your plea.  She stated that you had been in a relationship since 2010 with her.  She says that you have changed your ways since you were put back in gaol in December 2014.  In her words, "His thoughts have changed". 

29I have seen a report from the CISP program dated 5 September 2014.  That was Exhibit 2 on the plea.  You are now on a methadone program of 80 milligrams per day.  Ms Chandler says that you are heroin free and have been since your release from prison.  Ms Chandler said that you got a job as a plumber about three weeks after your release from prison.  It was submitted that you lost the employment after a police check revealed the full extent of your criminal history.

30Ms Chandler also gave evidence, you and she has set up a business known as Plumb Choice.  A number of business related documents which became Exhibit 3 were tendered in support of that submission.  Ms Chandler stated that she was an employee book-keeper, and you were the plumber.  She stated that the business turnover was approximately $3,000 a week, but sometimes it was only as much as $1,000 a week.  She stated since you had lost your job in September 2014, there were only a couple of days that you had been without work.

31Your past is a very extensive criminal history.  You estimate you have spent 12 years of your life in prison, that is more than half your life since your 18th birthday.  I will deal with your prior criminal history because it is very relevant in this case.  Your criminal history dates back some 20 years. 

32You first appeared in Broadmeadows Magistrates' Court on 5 April 1994, charged with trafficking amphetamines and cannabis, and other related offences.  You received a suspended sentence of eight months imprisonment, you were then 20 years old.  Since then, you have appeared in court as follows, on 30 June 1994, Broadmeadows, dishonesty charges, you were fined.  On 19 April 1996, Broadmeadows, dishonesty charges, six months suspended sentence.  On 12 September 1996, Broadmeadows, dishonesty charges, nine months suspended sentence.  On 10 October 1996, Broadmeadows, dishonesty, a suspended sentence and CCO.

33On 14 April 1007, Melbourne, dishonesty, 10 months' imprisonment and a breach of a CCO.  This was the first actual term of imprisonment you served.  On 20 August 1997, Prahran Magistrates' Court, dishonesty and drug charges, you were sentenced breach of suspended sentence.  On 27 March 1998, Melbourne Magistrates' Court, dishonesty charges, a sentence of imprisonment. 

34On 1 May 1998, Melbourne, dishonesty charges, one month imprisonment.  On 25 September 1998, County Court, armed robbery, 18 months' imprisonment.  On 9 October 1998, Melbourne Magistrates' Court, dishonesty charges, four months imprisonment.

35On 11 January 2001, Melbourne Magistrates' Court, dishonesty, three months imprisonment.  On 20 November 2001, Melbourne Magistrates' Court, dishonesty charges, 26 months' imprisonment.  On 16 July 2002, Bendigo Magistrates' Court, dishonesty charges, two months imprisonment. 

36On 22 April 2003, Melbourne Magistrates' Court, dishonesty charges, 12 months' imprisonment.  On 4 July 2003, Melbourne Magistrates' Court, dishonesty and violence charges, eight months imprisonment.  On 7 December 2006, Broadmeadows, dishonesty charges, six months imprisonment.  On 10 May 2007, Melbourne Magistrates' Court, possess a weapon, seven days imprisonment.

37On 24 October 2007, Melbourne Magistrates' Court, dishonesty charges, two months suspended.  On 30 January 2009, Ringwood Magistrates Court, dishonesty charges, six months suspended sentence.  On 9 June 2009, Melbourne Magistrates' Court, heroin charges and breach of a suspended sentence, you were fined.  On 13 August 2009, Melbourne Magistrates' Court, assault charges, eight months suspended sentence.

38On 15 April 2011, Melbourne Magistrates' Court, driving charges, dishonesty charges, you were fined and also imprisoned for 23 months or 16 months in minimum.  On 8 July 2011, you appealed that decision, and you were given 23 months with a 12 month non-parole period.  On 27 September 2012, Melbourne Magistrates' Court, dishonesty charges, you were sentenced to time served which was 14 days, and on 5 July 2013, Ringwood Magistrates' Court, theft and you were sentenced to one day.

39On my count, that is 25 appearances since you first offended, and were sentenced in 1994.  The preponderance of your offending is dishonesty charges.  The core of this offence is your attempt to deceive the sentencing Magistrate in November 2013 by forged or false references and reports from people who have treated you in the past.

40The purported reports and the references came from Ms Lapworth who had provided housing counselling services to you in the distant past.  You forged a report or a reference from Dr David Ross at Narre Warren Medical Clinic, who of course is your current treating doctor.

41I will now turn to sentencing considerations.  The first consideration that you have pleaded guilty to this offence at the earlier possible time.  It is difficult to properly assess the direct result of your offence of perverting the course of justice.  You have pleaded guilty.  You have pleaded guilty at an early stage in these proceedings.  The plea was indicated before any committal proceedings.  Your plea of guilty has a utilitarian value of allowing the orderly and effective administration of justice.  It gives a certainty of outcome and a resolution of the substantive issues raised by your offending.

42Your plea allows for the preservation of court and police resources to deal with other matters, and your plea vindicates the public confidence in the legal process set out to protect the community.  The plea of guilty to this charge indicates and demonstrates your remorse for this offence.  Your plea is clear acknowledgement by you that you accept responsibility for your criminal behaviour in this case.  Your plea also recognises that you are willing to facilitate the course of justice in the community.

43The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence by specific and general, rehabilitation, denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors such as the seriousness of your offence, your culpability for it and your personal circumstances.

44I am required to balance the interest of the community in denouncing your criminal conduct with the interest of the community and secondly to ensure as far as possible, you as an offender are rehabilitated and reintegrated into the society.

45The offence that you have committed is a serious offence.  The Parliament have set down a maximum penalty of 25 years imprisonment.  This is a clear indication of the community's view of how seriously this type of offence is to be considered.  Your attempt with false references and reports were designed to distort the course of justice, and prevent the sentencing court from producing a true and just result for the charges before it.  It was designed to undermine the public trust in the administration of justice.

46The administration of justice depends on the system operating so that those that commit crimes are pursued, brought to the court and punished, and those who take part in trying to interfere with that system commit a grave injustice insofar as the community is concerned.

47In the DPP v Aydin & Kirsch, Eames J said:

"Instances of the offence of perverting the course of justice do not frequently come before the higher courts.  The relevant infrequency of such cases, and the fact that the offence may embrace a wide spectrum of criminal conduct, means it is difficult for sentencing Judges to assess just where the sentencing range for the offence of any case ought to be regarded as falling".

48In this case, the Learned Magistrate had a number of references when you were sentenced on 25 November 2015.  The actual sentencing of you was deferred on a number of occasions until finalised on 14 November 2014.  At the time of sentencing, the Magistrate was in full knowledge of this offence and hence your deception was known to all.  In short, you have achieved no benefit by your offending in this case.  It also places your offending at the lower end of the range.  Mr Ballick for the prosecution appropriately made that concession, but submitted a period of imprisonment was appropriate for general and specific deterrence.

49I accept that your offending was motivated by your desperation to avoid incarceration for the Magistrate Court offences.  The net result was that you had served 141 days pre-sentence detention for this offence.  Since your release, I accept that you have engaged in rehabilitation for your drug addiction.  I have had you assessed for a community corrections order in an attempt to encourage and supervise you on a rehabilitative course.

50The Community Corrections report is that you are not suitable for such an order.  The summary is that you have breached every one of the 11 community corrections service orders between 1996 and now.  Not a good record of compliance. 

51On Charge 1, you are convicted and sentenced to 141 days imprisonment.  I declare that you have served 141 days pre-sentence detention and that is to be deducted administratively from your sentence.  On the same charge, you are convicted and placed on a community corrections order for two years.

52The conditions of the community corrections order are as follows.  You are to do 100 hours of unpaid community work.  You are to be assessed and treated for drug and alcohol treatment, including testing.  You are to be supervised under this order, and that you are to report at the Ringwood Community Corrections Centre at 2 Bond Street Ringwood within two working days of this order.

53But for your plea of guilty, I would have sentenced you to a straight sentence of 12 months' imprisonment, that is the s.6AAA.  That concludes the sentencing process. 

54Let me just say this Mr Zotos, given your record of non-compliance with community corrections order, and every other chance you have been given in the past, there will be some in this room that are sitting around saying, it is a certainty, it is just when he is going to breach it.  You are the only person who can prove them wrong, and you are the only person in this room that can benefit from that proof.  So it is over to you.  I know it is difficult, you are 41, now is the time for you.

55OFFENDER:  Thank you very much for giving me this opportunity, Your Honour.  I will not let myself down, or the courts.

56HIS HONOUR:  That is all right.  If you do, you will come back before me.

57OFFENDER:  Yes sir.

58HIS HONOUR:  You know where we stand.

59OFFENDER:  Yes sir.  Thank you very much, Your Honour, for this opportunity, thank you.

60HIS HONOUR:  You have to sign this order.  You will be given a copy of this order to go away with.  If you have cupboard door on your wardrobe, I suggest you put a copy of it up inside so every day you go there to get dressed to go out for the day, you have that reminder.

61OFFENDER:  I will not let you down.  You've given me this huge opportunity, Your Honour, and I know I've done a lot of wrong.

62HIS HONOUR:  That is all right, Mr Zotos, don't worry about me.  Worry about those three people sitting right there, those three.

63OFFENDER:  Yes, yes.

64HIS HONOUR:  They're the ones you owe it to.

65OFFENDER:  Yes.

66HIS HONOUR:  All right, thank you, I'll just adjourn.  I thank counsel for their assistance.

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