Director of Public Prosecutions v Zotos

[2014] VCC 1291

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

AT MELBOURNE
CRIMINAL JURISDICTION

AP-13-1109
CR-14-00824

DIRECTOR OF PUBLIC PROSECUTIONS

v

SPIRO ZOTOS

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	1, 4 and 6 August respectively
DATE OF SENTENCE:	14 August 2014
CASE MAY BE CITED AS:	DPP v Zotos
MEDIUM NEUTRAL CITATION:	[2014] VCC 1291

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – plea of guilty (Indictable offence) – Attempt to pervert course of justice – Appeal against sentence – Traffick drug dependence – Prohibited person possess firearm – Deal with property suspected being proceeds of crime – Extensive relevant criminal record relating to dishonesty offences – Department of Human Services viable alternative for care of children - Exceptional hardship not made out

Legislation Cited:     Sentencing Act 1991; Firearms Act 1996; Drugs, Poisons and Controlled Substances 1981

Cases Cited:R v Duncan 172 A Crim R 111; Andrews (1972) 57 Cr App R 254; R v Spiros Zotos [2007] VCC 531; The Queen v Spiro Zotos [2008] VSCA 82; DPP v Buhagiar & Heathcote [1998] 4 VR 540

Sentence:Total Effective Sentence 4 years and 10 months’ imprisonment; Non-parole period 3 years and 6n months’ imprisonment; s. 6AAA Sentencing Act 1991 declaration; Ancillary orders

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APPEARANCES:	Counsel	Solicitors
For the Director	Ms C. Sedgwick	Mr C. Hyland, Solicitor for Public Prosecutions
For the Accused	Mr P. Morrissey SC	Valos Black

HER HONOUR:

1Spiro Zotos, you have pleaded guilty to one charge of attempting to pervert the course of justice which has a maximum penalty of 25 years imprisonment – the maximum penalty reflects the seriousness with which the offence is regarded by Parliament.

2You have also appealed from sentences imposed in the Magistrates Court on 16 May 2013, where you were convicted of the following offences:

3Three charges of trafficking in a drug of dependence, 1 charge each of being a prohibited person possessing an unregistered firearm and Dealing with property suspected to be proceeds of crime.

4The maximum penalties for these offences are as follows:

5Trafficking a Drug of dependence and Prohibited person possessing a firearm: 15 years imprisonment.

6Dealing with property suspected of being proceeds of crime has a maximum penalty of 2 years imprisonment .

7As Ms Sedgwick submitted, in sentencing you for these matters, the maximum penalties prescribed by Parliament are the maximum penalties to which I must have regard as required by the Sentencing Act, albeit that the term of imprisonment which I can impose is limited to the Magistrates Court jurisdiction of 2 years for a single offence or a total of 5 years imprisonment for more than one offence. (see R v Duncan 172 A Crim R 111, paragraphs 18 -20.)

8The agreed factual basis for the appeal offences, which were committed  several years before the attempt to pervert  matter are as follows:

9In July 2010, police commenced investigations into illegal drug trafficking in the La Trobe Valley. During the investigation, police monitored 5 telephone intercept and listening device warrants in respect of you and a Ben Cassar. Those intercepts led police to a number of other persons of interest, all of whom were investigated in two police operations. These police operations focused on an organised crime syndicate which was involved in trafficking Methylamphetamine, Cannabis and other drugs throughout Melbourne, the Latrobe Valley and the Gippsland area.

10Using traditional investigative techniques to monitor the syndicates’ activities, police identified the major players as Pepe and you.

11Grunis, Kabalan, Middleton, El Hallal and Farid, were Melbourne based syndicate associates of PEPE. They have already been sentenced in the Magistrates Court. Throughout the course of the investigation, the monitoring of surveillance devices and telephone intercepts confirmed that Pepe attended the Merton Rush Hotel in Morwell on a regular basis, supplying you with Methylamphetamine, Cannabis and other drugs for distribution.

12You and Mr Pepe were partners in the Merton Rush Hotel. You and Mr Pepe made plans to refurbish the hotel and provide erotic entertainment, but these plans did not come to fruition. The hotel was running at a loss. The license was held in the name of Zost Pty Ltd (ROI 77).

13During its operation, you used the back office of the hotel to sell drugs to friends and associates. (ROI Q 88, 114) Three of the transactions the subject of these charges took place with an undercover police officer named “Robbie”.

14Mr Pepe is alleged by the Prosecution to be the source of the drugs through his association with Joseph Kabalan (known for having an ability to manufacture methylamphetamine). Precursor chemicals were sourced by Mr Pepe through associations such as that with Damien Grunis who had access to these because he once ran a company which purchased industrial chemicals. Johnny El Hallal provided the premises and materials, and on one occasion, an unsuccessful attempt was made at the home of Ross Sheedy.

15The manufacture by Mr Kabalan was generally of poor quality and the purity levels of the substances produced was generally low.

16In respect of the items obtained by the Undercover officer which were able to be tested, these results were set out in a certificate of analysis, which indicated that a total of 11.4 grams of substance was analysed and all items analysed contained methylamphetamine. The level of purity of methylamphetamine in three of the items analysed could not be determined but in two of the items, a purity of 10 per cent was found.

17A traffickable quantity of a substance including methylamphetamine is 3 grams.

18I was told that at the time you committed these offences, you were a drug user.

Charges

19You indicated a preparedness to plead guilty to the following charges, which are now the subject of the appeal before me:

Charge 2: That between 1 November 2010 and 27 April 2011 you trafficked Methylamphetamine.

The quantity which you accept you trafficked was 60 grams.

Three transactions with respect to this charge take place with an undercover police officer named ‘Robbie’. On these occasions, you sold Robbie a total of 8 grams: three grams on 6 April 2011, three grams on 11 April 2011 and 2 grams on 24 March 2011. The code word was “coffee” and each ‘coffee’ was $200 – being one gram of methylamphetamine.

The remainder of the transactions involved sales to friends or associates, in small amounts.  You told police that the “most (you had) ever seen” was 16 grams .  On 2 separate occasions, you said that you sold 12 grams.

On the day of your arrest, you were in possession for the purposes of sale of 3.5 grams.

The admissions in the record of interview are largely consistent with the telephone intercept material and the representations made to the undercover officer. It was confirmed by the Crown and no issue was taken by defence that the quantity of methylamphetamine you trafficked overall was 60 grams, this occurring over a period of about five and a half months.

Charge 4, you pleaded guilty to trafficking cannabis between 9 January 2011 and 23 April 2011.  On 28 April 2011, police found the following amounts of cannabis at your home in Morwell.  310 grams in one bag, 10 grams in a snap lock bag, 17 grams in a snap lock bag and 3 grams in yet another snap lock bag.  At the Merton Rush Hotel, on the same day, police found a small quantity of cannabis.

In your record of interview, you admitted to trafficking 2 pounds of cannabis to Ben Cassar.  The Crown allege and you accept that the total amount of cannabis trafficked during this period was two pounds.

In relation to Charge 9, which is the subject of appeal also, you plead guilty to being a prohibited person in possession of a firearm on 28 April 2011.  The basis for this charge is that when police executed a search warrant at the Merton Rush, they found a black coloured semi automatic pistol in a safe. It is accepted by the Crown that this was an imitation firearm. At the time of possessing the item, you were a prohibited person by virtue of s. 3(a)(v) Firearms Act - that is, you were a person in respect of whom not less than 5 years had expired since you finished serving a sentence of imprisonment for an indictable offence, the indictable offence being obtaining financial advantage by deception.

20In relation to Charge 10 on appeal, that is the charge of possessing proceeds of crime, which is alleged to have occurred on 28 April 2011, at the Merton Rush Hotel, police found the sum of $5760 in a safe, together with the imitation weapon to which I have just referred.

In relation to Charge 5 which is also the subject of appeal, that is the charge of again trafficking a drug of dependence, the substance being unknown.  And it is alleged that on 5 January 2011, you sold a drug which you believed to be ecstasy, referring to that substance as "lollies".  You sold the substance at the hotel and you said in your record of interview you were only able to sell 5 tablets out of 100 as the quality was poor. This was confirmed in the Telephone intercept material.

Co-Offenders

21In relation to co-offenders concerning the offending to which I have just referred, all other co-offenders save for Pepe have just been sentenced.  And as I understand, they have all been sentenced in the Magistrate's Court.

(a) Firstly, Ross Sheedy, was sentenced for possession of materials and equipment for the purpose of trafficking in a drug of dependence.  He was granted a 2 year adjourned undertaking with conviction;

(b) Damien Grunis was dealt with for possession of precursor chemicals, and possession of cannabis.  After giving an undertaking to give evidence against Pepe in any future criminal proceeding, he was convicted and sentenced to and aggregate term of 18 months imprisonment.

(c) Joseph Kabalan was dealt with for trafficking and attempting to traffick a drug of dependence, on the basis of manufacture. He also gave an undertaking to give evidence in any future criminal proceeding against Pepe..  I was told he was co-operative with the police from the outset.  He had one prior conviction in 2001 for being a crowd controller without a licence. He received a 15 Month community corrections order with 120 hours unpaid community work, supervision and assessment for drug use and mental health issues

(d) Mr Nabil Farid was dealt with for trafficking methylamphetamine between 8 December 2010 and 23 April 2011. He was convicted and placed on a 2 year undertaking to be of good behaviour with a payment of $2,000 into the court fund. I am not aware as to the details of his offending over this four month period including the role that he played, over and above being told that he was a Melbourne based syndicate associate in circumstances where police identified you and Pepe as the major players in the syndicate’s activities.

(e) Ms Kirsten Middleton was dealt with for one day of possession of cannabis on a personal use basis. She was convicted and discharged. She was also sentenced for one day of possession of materials and equipment for the purpose of trafficking in a drug of dependence and received a 12 month CCO involving treatment and rehabilitation and it appears she had some mental health issues.

(f) Mr Johnny El Hallal[1] was dealt with for one day of being in possession of cannabis L, possessing equipment for the purposes of trafficking a drug of dependence, being a prohibited person in possession of a firearm, and being in possession of ammunition without a license.

His sentencing was deferred under S.83A(1B) Sentencing Act, with the Review date being 8 May 2013. He was ordered to appear on 20 November 2013 and to supply a medical report and report from a rehabilitation facility in respect of his cardiac condition. He was fined $250 for the firearms offence, and convicted and discha[2]rged on the possess cannabis.

[1] On 28 April 2011, possess drug of dependence - Cannabis L;

22Save for Mr Kabalan, I am not aware of the criminal history of any of these co-offenders. However, on the basis of what I do know, it is difficult to see how any co-offender who has been sentenced can be compared to you for the purposes of parity.  Mr Morrissey submitted that Mr Kabalan came closest, however, as he conceded, his history is nothing like yours and he gave an undertaking to give evidence, entitling him to a most substantial discount in the sentence he would otherwise receive.

23In the Court below, the learned magistrate had sentenced you to 2 years imprisonment and imposed a non-parole period of 16 months. 104 days pre-sentence detention had been declared as already served. You lodged appeal notices in respect of this sentence, and the appeal was originally listed in this Court before His Honour Judge Gamble on 11 December 2013.

24This brings me to Charge 1 on the indictment. 

25The basis for the offence on the indictment is that during the course of the appeal hearing before His Honour Judge Gamble.  Two character references were handed to His Honour’s associate.  They had not been tendered but it was proposed that in due course, this would occur.  Your legal advisers had apparently told you to obtain character references in support of your appeal, and two work related references were handed to them.

26One of these documents, said to be dated 4 December 2013 purported to be a character reference from IGA Deer Park. It was on IGA letterhead and said to be signed by a Joseph Moretti.  The second of these documents, ‘dated’  9 December 2013, purported to be a character reference from The Victorian Yogurt Company. It was on this company’s letterhead and was said to be signed by a John Veless.

27On 11 December 2013, the appeal hearing was adjourned until the 17 December 2013 to allow the psychologist to attend court to give evidence.  The police informant conducted enquiries into the authenticity of the references that had been supplied by you.

28On 12 December 2013, the informant spoke with the owner’s representative of the Deer Park IGA. He confirmed that you had been employed at the store and that your employment ceased in October 2013. He stated that Joe Mareti was a casual employee of the store and was not permitted to provide referee reports for IGA or use the IGA letterhead on any documents.

29The informant then spoke with Joe Mareti.  Mareti said  that when you  left the store you asked him to provide a referee report. He said that he thought it was a character reference as a friend. As you were friends he agreed. Sometime later, he said that you showed him a referee report on IGA letterhead, which displayed his name spelt incorrectly. You told Mareti that it was for Court. He did not sign or prepare the document on the IGA letterhead, you did this.

30There was a dispute as between the parties as to the accuracy of a number of the matters in the two documents, which has now resolved. In relation to the IGA document, while a good deal of the matters contained in it were either true or not objectively wrong, it is accepted by you that your job did not involve banking, as asserted.  The document also purported to recommend you highly, but you knew that those in charge at the business would not have done so. Further, the document represented that the author was in a position to provide such a reference but, even if Mr Mareti had written the reference, he was not in any such position. Not only did you create the false document but you asked Mr Mareti to go to Court and tell the Judge and the police that he had written the referee report. Mareti attended Court on the 17 December 2014. However when he arrived he said that he “couldn’t go through with it because it’s all wrong”.  Mr Mareti left the court without giving evidence.

31The informant also spoke with John VELESS from the Victoria Yoghurt company. John VELESS confirmed that you were a current employee. However, he had never completed or signed the ‘character reference’ purported to have been created and signed by him. He did not give you permission to write the report on his behalf or use the company’s letterhead.  He said that you had access to the letterhead on the company computer.

32In respect of this document, apart from it falsely purporting to be a character reference from the Company’s Director, there were the following assertions which you knew to be untrue:

(a) That you were ‘poached’ by the company - this was not so: as you applied for a position.

(b) That you were subject to a four year contract.

(c)  That you had secured ‘over 100 new contracts’: in fact you had secured 40 to 50 new clients

(d) That you had been offered a salary package involving a salary of $85,000; in fact, you had been offered a salary of $50,000 which was part of the package.

33Again, there were a number of assertions in the reference which were not said to be objectively wrong.

34After Mr VELESS had spoken to the police, you approached him and gave him a referee report.  Mr VELESS looked at it and told you, ‘this isn’t right’. You said, “Well it kinda is”. Mr VELESS then signed that document. This is not the same document that Mr VELESS had already been shown by the police, but the contents were the same.  Mr Veless gave an explanation as to why he signed the document but this doesn’t take matters any further from your point of view.  As I understand the position though, you had already provided the Court, via your legal representatives, with the reference with the forged signature before approaching Mr Veless to sign a copy of that document.

35On 17 December 2013 on the sentence appeal, defence counsel withdrew. It was agreed that the documents had been provided to be read but had not been formally tendered.

36The sentence appeal hearing was adjourned.

37You plead guilty to attempting to pervert the course of justice on the basis that you created, falsely signed and submitted the two ‘references’ in order to present yourself in a favourable light in the sentence appeal hearing.  I have set out the assertions in each of the documents which you knew to be untrue.

38On 23 December 2013, you were  arrested and interviewed by police.

39When asked whether any of the documents obtained for Court were incorrect, you said, “Not that I know of” Q47.  You went on to say that you  typed out one of the referee reports and “the boss signed it”. Q49

40When asked whether you knew that the references were to be supplied to the Court , you said: “I don’t know, maybe show the judge what I’ve been doing. I’m not sure.” Q61

41When asked whether the references would be seen to show you in a favourable light, you said: “Well, that’s what references are, isn’t it”.  Q65

42You  denied forging Mr VELESS’ signature. Q78

43You  also claimed that Mr MARETI signed the IGA reference. Q102. 

44Mr Morrissey submitted that it was in a state of panic that you attempted to pervert the course of justice, and that you were concerned not to alert your former employer and present employer to your impending appearance before the Court in December last year.  While I can understand this concern, on any view of things, your attempt to deceive the Court is a serious matter which warrants a fitting punishment in all of the circumstances.  Your conduct must be denounced and strong weight must attach to general deterrence in a bid to deter others from behaving as you have.  

45Conduct which undermines or threatens the administration of justice is viewed very seriously by the Courts.  In Andrews (1972) 57 Cr App R 254, Widgery LCJ (Lord Chief Justice) stated at 258:

“….there are few more serious offences possible in the present day ... than those which tend to distort the course of public justice and prevent the Courts from producing true and just results in the cases before them.”

46In sentencing you, I have borne in mind that you attempted to distort the outcome of your appeal although your failure to do so had nothing to do with you. I have also taken into account that some of the matters contained in each of the documents were accurate or at least, were not objectively wrong.  I have also factored in the degree to which the references may have influenced the outcome of the appeal in so far as I can.  But the most serious aspect of your conduct was your preparedness to provide false documents to the Court and to approach others to assist you in conveying such false information. In particular you were prepared to have your friend, Mr Mareti perjure himself in order to help save your skin.  Also, there was a level of sophistication to the creation of these documents and your commitment to this criminal course was of an enduring nature.  Even when interviewed by the police, you maintained the lie.

47Your offending (attempt to pervert) is especially concerning in view of your horrendous criminal history which comprises largely dishonesty offences, and it is evident that some of these involved you creating false documents.  Whilst you are not to be punished again for these prior matters, your history is most relevant to your prospects of rehabilitation, specific deterrence and protection of the community.

48Insofar as the appeal matters are concerned, these are also serious. You had recently been released from gaol when you committed them, and you committed these offences whilst still subject to parole, which is an aggravating feature of this offending.  When this matter was raised by me through my associate via email correspondence following the further plea hearing, I received submissions from the parties in written form.  As Ms Sedgwick submitted, I am unable to speculate as to what action might be taken in respect of uncancelled parole and I do not do so.  Mr Morrissey also agreed with this position.

49While I have borne in mind the principle of totality in sentencing you, I am unable to factor in this unknown aspect, that is the position with your parole when applying the principle.  Although you did what you could to run an hotel, you succumbed to drug trafficking as a way to keep the business afloat.  You were a main player in this offending, albeit that the quantities of drugs alleged against you are not immense. Having said this, the quantities of methylamphetamine  and cannabis trafficked were not insignificant either.  I have also factored in that the offending spanned a number of months.  In assessing your moral culpability I take into account that you were an amphetamine user yourself although this was not the motivation for you to engage in drug trafficking - rather, it was to try to keep your hotel business afloat.  Again, the appeal matters call for a punishment which is just in all of the circumstances and your conduct must be denounced.  Strong weight must also attach to general deterrence in respect of these offences.

50Specific deterrence and your prospects of rehabilitation are concepts which are not readily divisible as between the 2010/2011 and the 2013 matters but in making an overall assessment of these, I note that the former marked the first occasion on which you committed drug trafficking offences.  I also note that it was not the first time that you have been dealt with in respect of  being in possession of weapons, including an imitation firearm.

51As at 2007, you had prior convictions for 130 dishonesty offences and you had prior convictions for other matters as well.  His Honour Judge Duggan helpfully summarized a good many of these in the course of his sentencing remarks – (see R v Zotos, Spiros [2007] VCC 531 paras [22]-[35]). Added to these are the matters which were dealt with by His Honour Judge Duggan, being four counts of Obtaining a financial advantage by deception, one count of attempting to obtain a financial advantage by deception, two counts of using a false document, two counts of making a false document and a charge of possessing a drug of dependence. His Honour described the offences before him as ‘sophisticated and considered frauds’. The reason proffered for committing these offences was to prop up a business in Morwell in partnership with a former policeman. This has a familiar ring to your explanation for drug trafficking, which is the subject of the appeal before me.

52You had been offending on a regular basis since you were 17 years old. When you commenced the series of offences for which His Honour sentenced you in 2007, you were 32 years old, on my reckoning.  You were 37 when sentenced.

53On that occasion you called in aid your disabled wife and your children; it appears that it was put on that occasion that you were needed to take care of your family. However, His Honour took the view that reliance upon this factor in order to obtain an intensive corrections order was unrealistic in view of your criminal history,  [see paras 41-42] of His Honour's sentencing reasons.  His Honour told you that you had come to the stage where it was difficult to contemplate anything other than an immediate custodial sentence ‘even for relatively minor offences’.[see para 45]

54You were on express notice, if you needed to be, that further offending would expose you to further periods in gaol.

55It would be clear from what I have previously said that I do not regard your offending for which I now sentence you,  as minor.

56However, not long after your release from three years gaol, where Mr Morrissey said you had been concerned about your children’s wellbeing, you embarked on the drug trafficking venture, which is the subject of the appeal, and you again took possession of an imitation firearm. 

57I have factored in your background:  You are now 44 and neither of your two sisters have criminal histories.  Your parents separated when you were eight but both maintained their love and support of you.  When you were 10 years old you went to Greece where you spent two years with your father and made connections with his community of friends and family there.  You then returned to Melbourne and resumed living with your mother and sisters.  Your father returned to Melbourne also.  You were said to be a student of ‘moderate’ abilities and had no issues at High School.  However, you went to Brunswick High School in Year 12 and this is when you were introduced to a scene involving late nights, gambling and a degree of instability.  It was in this context that you commenced to commit dishonesty offences, which essentially became a way of life in the ensuing years.  While you worked in restaurants along the way, you saw fraud as an easy means to make money, and it appears that you saw the commission of these as something of a challenge or thrill, at least in your younger years.  When you were 29 you committed offences which led to your first significant period of incarceration. 

58You met Helene Maddaluno somewhere along the way and you and she have three children together.  For a time, your relationship with Ms Maddaluno was a positive one.  However, Ms Maddaluno unfortunately suffered a serious accident whilst doing track work, which then led to a deterioration of her mental health and she developed an attraction to drugs.

59I have considered the report from the Department of Human Services which was tendered at the further plea and I accept that, before DHS intervention,  your children were in an abject environment with their mother.  By all accounts, the environment which you have provided is a far better one for them.  I accept the evidence of Mr Katsoulis that you are devoted to caring for your children and that the children are happy and in a stable environment.  I accept  that this was not the case when in their mother’s care.  However, it is not envisaged that the children be returned to their mother’s care if you were to be imprisoned.  It is envisaged that they would live with their grandparents in Morwell and be reconnected with other family members and friends there. They would return to the school which they were attending until the beginning of this year.  In this regard, I refer to the letter from Marita Borton, Acting case manager from DHS, dated 24 July 2014, who said that the further disruption would be minimised because of these links to Morwell.  As I understand the position, the children’s mother may be able to exercise supervised access in the future providing suitable supervision is arranged.  While the children’s mother may not be a suitable full time carer, it seems that DHS still take the view that such access would be appropriate and can be best facilitated in Morwell.

60I have a great deal of sympathy for your children’s situation and I have given their plight much anxious consideration.  Your children are now aged 6, 8 and nearly 10.  They have been subjected to dreadful treatment and neglect at the hands of their mother, and you have demonstrated a capacity to care for them well.  I have also considered the immense strain that might be placed upon the grandparents who are designated to look about them if you are incarcerated, but, in view of the matters to which I have just referred, I do not regard the difficulties that the children will inevitably suffer from further disruption as amounting to exceptional hardship.  You took the children into your care, knowing that you faced the real possibility of an immediate gaol term; you expressed the wish that in the event of your incarceration they be placed with their maternal grandparents.  DHS make express reference to this matter in the letter to which I have referred.  DHS is of the view that a viable alternative to you caring for the children is their maternal grandparents with whom they have had an enduring relationship.  I accept that it would be ideal for them to be with their father and that they are happy with you and in their new, stable environment; but it has not been demonstrated that a return to their previous community, absent their mother as full time carer, will be detrimental to them to the point of exceptional hardship.

61However, I do accept that you have a bond with your children, and at least nowadays, you genuinely care for their welfare, meaning that time in gaol without them would make that time more difficult for you.  It may be that they have been your salvation in recent times, as was suggested by Mr Morrissey. Your wish to take care of them will doubtlessly endure, no matter what.

62I also accept and count in your favour that in the period between the appeal matters and the attempt to pervert matter you had shown some positive changes in your life such as obtaining employment and working with a charity organisation, Endless Horizons.  When released on bail in 2011 you completed the CISP program, you removed yourself from the night club scene which had apparently been the context for much of the fraudulent activity in which you engaged  and was said to be the kind of context in which you committed the offences before me on appeal.  You have also abstained from drugs since that time in 2011, and you have obtained stable accommodation.  I also factor in that following your offending in December you took on full time responsibility of the children, combining this with legitimate work.  These matters are to you credit.

63In the period between the appeal matters and December of last year, you did not commit further offences, which, with your history is a rather good effort. Unfortunately, you chose to re-offend in December last year, albeit that you did so in an apparent state of panic.  It does not set your efforts before this or after this at nought but is relevant to your prospects of rehabilitation.

64I take into account that you come from a loving and supportive family.  One of your sisters was in Court to support you at the plea hearing.  I also count in your favour the work that you have done with Endless Horizons over the past three years and the evidence that Mr Katsoulis gave as to your character generally.

65I accept that you have remorse for your offending, although this is really limited to how it has impacted on you and more recently, yours, rather than possessing a great deal of insight about the scourge of drugs on society or about the lack of integrity that comes with dishonesty.  I do hope that, regardless of the sentence imposed today, you have reached a point where you will stop offending, and lead a decent life for your own benefit and that of your children, and the community.  If you do not, you can expect to be spending ever increasing periods of your life in gaol.

66In all of the circumstances, I must attach significant weight to specific deterrence, as I regard your prospects of rehabilitation as fairly marginal.  I must also place significant weight on protection of the community.  You are no longer a young man but you have continued to offend, albeit that you did not commit offences for several years after the 2010/2011 matters.  Unfortunately, in the past, you have refrained from offending for a substantial period before returning to this, as is evident in the observations of His Honour Osborn AJA in your appeal in 2008 – (see The Queen v Spiro Zitos [2008] VSCA 82 at [50] - [52].) However, as I have previously said, I have factored in this period of non-offending when sentencing you and have borne in mind that you have a new found impetus to reform.

67In relation to the appeal matters and the attempt to pervert matter, I also have factored in your plea of guilty and the stage at which you entered your plea of guilty or pleas of guilty in relation to each of the matters.  I take those pleas of guilty into account in your favour as they have saved the witnesses the time and trauma of giving evidence and the time and trouble of giving evidence and they have saved the community the significant expense of contested proceedings.  In those circumstances you are entitled to a discount which is not insignificant.

68I have considered the authority of DPP v Buhagiar & Heathcote [1998] 4 VR 540 to which Mr Morrissey of Senior Counsel referred me and I have also considered submissions he made in this regard. Of course, it is true that the community has an interest in the rehabilitation of offenders - that its protection can mean that a disposition other than immediate gaol is in the best interests of the community in certain cases, as it will afford the offender an opportunity to reform. However, I’m afraid that this is not such a case. I simply cannot do justice to all applicable sentencing principles and preserve your liberty in doing so.

69Would you please stand up Mr Zotos

70In relation to the Magistrates' Court matters which are the subject of appeal I impose convictions in respect of each of the charges.

71I make the forfeiture and disposal orders previously made in the Appeal proceedings as follows, that is:

72A Disposal Order in respect of Charges 2, 4 and 5 in respect of the drugs seized.

73A Forfeiture Order in respect of Charges 2, 4, 5 and 10 for the sum of $5,760.00 and also the mobile phone which was seized.

74     I make a Forfeiture Order in respect of Charge 9 for the imitation firearm.

75     I make an order for a forensic sample to be taken from you by way of a scraping from the mouth.  I make the order because it is not opposed by you, because of the seriousness of the offences and because it is in the public interest to do so and because of your prior convictions. Notwithstanding your present lack of opposition to the order I warn you that if you do not co-operate with the officer who is authorised to take the sample, reasonable force may be used to ensure your compliance.

76In relation to the appeal charges, I impose the same head sentence as that imposed by the learned Magistrate, Mr Capel -that is, an aggregate term of 2 years in respect of all of the charges.

77In respect of the charge on the indictment,

78Attempt to pervert the course of justice, you are convicted.

79You are sentenced to four years imprisonment, which I shall refer to as the base sentence.

80I direct that 10 months of the sentence imposed in respect of the Magistrates Court matters be served cumulatively with the base sentence, producing a total effective sentence of 4 years 10 months and I direct that you serve 3 years 6 months before becoming eligible for parole.

81If not for your pleas of guilty I would have sentenced you to a total effective sentence of 6 years 6 months with a non-parole period of 4 years 6 months imprisonment.

82I declare that you have served 104 days by way of pre-sentence detention ( in relation to AP-13-1109) which will be reckoned as served.

83Take a seat for a moment please.  Is there anything further, counsel?

84COUNSEL:  No, Your Honour.

85HER HONOUR:  Yes, thank you, you can remove the prisoner.

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On 28 April 2011, being a prohibited person, possess a registered firearm contrary to s.5(1) Firearms Act 1996 (HUB 233 – registered to Mr Dimitrios KYPIRTIDIS);
On 28 April 2011 possess cartridge ammunition whilst not the holder of a license or permit contrary to s.12(4) Firearms Act 1996;
On 28 April 2011 did possess materials, substances, equipment with the intention of using for the purposes of trafficking in a drug of dependence contrary to s.71A Drugs Poisons and Controlled Substances Act 1981.