R v Athanasi, Costas
[2005] VSCA 96
•20 April 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 191 of 2003
THE QUEEN
v.
COSTAS ATHANASI
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| JUDGES: | CHARLES and VINCENT, JJ.A. and OSBORN, A.J.A. |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 April 2005 |
| DATE OF JUDGMENT: | 20 April 2005 |
| MEDIUM NEUTRAL CITATION: | [2005] VSCA 96 |
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CRIMINAL LAW - Sentencing - Multiple counts of trafficking in a drug of dependence - Offences committed in breach of suspended sentence and whilst on bail - Personal circumstances - Applicant a mid-level drug dealer - Sentence of 5 years 9 months, non- parole period of 42 months not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. with | Mr S. Carisbrooke, Acting |
| Dr S.B. McNicol | Solicitor for Public Prosecutions | |
| For the Applicant | Mr L.C. Carter | Clarkson and Socio |
| CHARLES, J.A.: |
On 27 June 2003 the applicant pleaded guilty in the County Court at Melbourne to two presentments. Presentment P01366519 (the first presentment) alleged two counts of trafficking in a drug of dependence (count 1, ecstasy; count 2, methylamphetamine), two counts of possessing a drug of dependence (count 3, ketamine; count 4, cannabis L) and one count (count 5) of being a prohibited person possessing a firearm. Presentment Q00582348 (the second presentment) alleged four counts of trafficking in a drug of dependence (count 1, methylamphetamine; count 2, ecstasy; count 6, MDA; count 7, ketamine), two counts of possessing a drug of dependence (count 3, heroin; count 8, cannabis L), one count of burglary (count 4), one count of theft (count 5), and one count of handling stolen goods (count 9).
The applicant admitted thirteen prior convictions from seven court appearances. It is necessary only to mention that he was convicted in the Magistrates' Court on 8 February 2001 on one count of trafficking in methylamphetamine, and was sentenced to be imprisoned for four months, the sentence being suspended for twelve months.
After a plea, the applicant was sentenced on 4 July 2003 on the first presentment as follows; on the two counts of trafficking, each of which was alleged to have occurred on 24 June 2001, in each case to twelve months' imprisonment; on the count of possessing ketamine to six months' imprisonment; on the count of possessing cannabis L to a fine of $100; and on the count of carrying a firearm to three months' imprisonment. On the second presentment the applicant was sentenced on counts 1 and 2 (two counts of trafficking which were alleged to have taken place between 18 February and 21 March 2002) in each case to twenty-four months' imprisonment; on the count of theft to eight months' imprisonment; on the count of trafficking in MDA (count 6) to eighteen months' imprisonment; and on the remaining four counts, in each case to twelve months' imprisonment.
For the purposes of cumulation the base sentence became count 1 on the second presentment. Orders were made for cumulation of six months of each of counts 1 and 2 and three months of count 3 on the first presentment, a total of fifteen months; and on the second presentment for eight months on count 2, three months on each of counts 3 and 7; six months on each of counts 4 and 6; and four months on count 9. The orders for cumulation produced a total effective sentence of sixty-nine months, and the judge fixed a non-parole period of fifty-two months.
The applicant now seeks leave to appeal on the ground that the sentence imposed is manifestly excessive, and detailed particulars of this claim are given. I shall turn to them shortly.
The facts giving rise to the first presentment were as follows. On 24 June 2002 the applicant was observed by police driving along Bell Street, in Pascoe Vale South, using a mobile telephone whilst driving and then "running" a red light. He was intercepted and the police ascertained that the vehicle was sought in connection with an alleged armed robbery. Upon being searched the applicant was found to have a plastic bag containing 109 white tablets, a plastic bag containing a red/brown coloured powder and a plastic bag containing cream coloured powder. A search of the vehicle revealed an air pistol on the rear floor and a plastic bag on the front passenger side floor containing green vegetable matter. The pistol was found to be a .177 calibre Walther model double-action eight shot, loaded with eight .177 calibre pellets. The drugs seized were analysed and were found to contain 41.1 grams of ecstasy, 29.2 grams of methylamphetamine, and ketamine. The value of the ecstasy tablets was said to be $7,630; the methylamphetamine, $3,450; and the ketamine, $1,200. When interviewed by the police on 24 June 2001 the applicant stated the drugs were for his personal use, and claimed that the pistol had been left in the car by another person who was trying to sell it to him for $1,000.
The offences in the second presentment arise out of the fact that between 18 February 2002 and 21 March in the same year the applicant was the target of a police operation named Generator. His mobile telephone was intercepted and monitored at this time, during which some 11,442 calls were made to and from it. The intercepts revealed that the applicant trafficked in methylamphetamine and ecstasy on almost a daily basis during this period. It was also established that he had been involved in the sale and purchase of methylamphetamine in amounts ranging from four ounces to gram deals. For example, the applicant offered on one occasion to sell an ounce of methylamphetamine for $4,500 and he sold one gram of rock methylamphetamine for $250. The applicant was selling ecstasy tablets for between $16 and $26 each, depending on the quantity purchased. Quantities of one thousand tablets or more were mentioned, ecstasy being the primary substance in which he trafficked. Police surveillance established the movements of the applicant, who hired two vehicles over the period in which he was being observed. In these vehicles he covered a total of nearly 14,000 kilometres in the period in question.
On Sunday 10 March 2002 the applicant stayed overnight in room 21 at the Bell Street Motor Inn in Preston. When he checked out of the motel that morning, police officers searched his room and found a package he had left between mattresses in the room. The package contained a black coloured sunglasses case containing foils, powders and tablets. These items were analysed and found to contain ecstasy, methylamphetamine and heroin.
On 21 March 2002 the applicant was involved in a burglary and theft of cigarettes and mobile telephones from a business called "Mobile Link" in Clayton Road, Clayton. The applicant sat in a car nearby while a co-offender entered the premises through the roof, disconnected the alarm and smashed a hole in the roof to gain entry to the showroom. The applicant and the co-offender maintained contact throughout the incident by telephone. While police patrolled the area, the applicant contacted his co-offender and told him to remain still. Once the police left, the applicant and the co-offender arranged to meet to distribute the proceeds of the burglary and theft. Approximately $16,700 worth of cigarettes and mobile telephones were stolen.
Later on 21 March the applicant drove a hire car to his home address in Keilor Downs and collected his partner, Vicki Lester. They drove to a hotel in Taylors Lakes, where the police apprehended him. Before the arrest the applicant threw something at Ms Lester and told her to get rid of it, and she placed the item under her seat. A silver sunglasses case was found under the passenger seat, containing a variety of drugs. The police also located a number of ecstasy tablets in Ms Lester's handbag, which she claimed had been taken from the applicant at an earlier stage for personal use. Also found in the car were a number of stolen items.
The applicant was arrested and taken to Keilor Downs, where a search revealed that he was carrying $3,100 in cash, alleged to be the proceeds of trafficking. Later that day a search warrant was obtained and executed at the applicant's home. A number of items were seized, including some which had come from the burglary which had taken place in Clayton earlier that day. Also found were a variety of drugs, including a black bag containing six plastic bags with a total of seventy-five ecstasy tablets; and a large number of items including a digital video broadcast unit and remote control, a video recorder and large numbers of play station games which have since been traced to various premises which had been burgled at various times in February and March 2002.
The applicant was interviewed by police later that day and provided a mainly "no comment" record of interview, as well as giving an account of events which was unreliable.
The maximum penalties for the various offences to which the applicant pleaded guilty were, for trafficking in a drug of dependence, fifteen years; for possession of a drug of dependence, five years; for possessing a firearm, seven years; for burglary and theft, in each case ten years; and for handling stolen goods, fifteen years' imprisonment respectively.
During a comprehensive plea, reliance was placed by the applicant's counsel on his plea of guilty, and on his family circumstances. The applicant comes from a close and very hard-working family. His father had built a substantial business selling fruit and other produce, and by hard work supported by other members of the family the business had prospered. The family then decided that they would expand the business and develop their own market on a large block of land at Altona North. Sadly this was not successful and the business failed and the applicant and his parents all declared themselves bankrupt. His parents returned to Cyprus, and the applicant followed. In about 1993 he returned to Australia and formed a relationship with Vicki Lester, two children, a boy and a girl, having been born of that relationship. In 1996 the applicant and his family moved to Cyprus, but the move was unsuccessful and Ms Lester returned to Australia in 1998. The applicant returned also and began carrying out security work. While so engaged, he was stabbed in his left arm, which required neurosurgery, and for a time he was unable to work and suffered severe pain. He began using ketamine, which relieved the pain, but which developed into a drug habit rising to three grams a day, at a price of $500 to $1,000 a day, and he resorted to trafficking to feed his addiction.
It was put to the judge that the applicant had, at the time of sentence, been in custody for nearly five hundred days, and had weaned himself off drugs in that time. There was considerable discussion of the extent of the applicant's trafficking. His counsel, however, conceded that he was an active drug dealer but put it to the judge that although he was dealing to other drug dealers at times, he was only "one rung up" from a street level dealer. It was argued that he had made no personal financial gain from his trafficking. The judge put to the applicant's counsel in argument that the applicant was an active drug dealer, selling to a substantial number of sub-drug dealers, and this was not contested.
In this Court, Mr Carter for the applicant did not submit that any of the individual sentences was manifestly excessive, although he argued that some were very stern. His central argument was that the total effective sentence and the minimum term both fall outside the range of a sound discretionary judgment, resulting from excessive orders for cumulation, especially on the second presentment. He emphasised that counts 1 and 2 on the second presentment were confined to a one-month period ending on 21 March 2002 and that all of counts 4 to 9 were committed on 21 March. He also submitted that the sentence does not reflect sufficient discount for the guilty pleas.
The particulars of the ground of manifest excess claim that the judge gave insufficient weight to the applicant's drug history between 1999 and 2002, to the lack of financial profit to the applicant from drug trafficking, to his lack of a relevant criminal history prior to 2000, his prospects for rehabilitation both generally and from drug addiction, and to the impact of his drug addiction on his moral culpability. They also allege that the sentence offends the principle of totality and places excessive weight on specific and general deterrence.
The judge was plainly entitled to categorise the applicant as a "mid-level" drug dealer on the evidence before him. His Honour set out in detail the facts and submissions in relation to the applicant's drug history and his lack of financial profit from drug trafficking. The judge expressly accepted that the applicant was drug addicted and that his motivation was to make money in part to afford his drug habit and lifestyle and to support his gambling. His Honour then said that the applicant was not to be sentenced as an offender who conducted a business of selling drugs for commercial gain.
It cannot be said that the judge gave insufficient weight to the applicant's lack of a relevant criminal history prior to 2000. What was, however, significant in the applicant's criminal history, as his Honour pointed out, was that he had been convicted of trafficking in methylamphetamine on 8 February 2001. In breach of the suspended sentence then imposed, he was arrested on 24 June 2001 and charged with the counts on the first presentment. Having been bailed after that arrest, he then committed the offences making up the second presentment. The judge recorded in his sentencing reasons that the applicant had remained drug free whilst in custody and had completed a drug education program and a relapse prevention program and accepted that there was some prospect of rehabilitation. The reference that his Honour made to specific and general deterrence was entirely appropriate in the circumstances.
Notwithstanding Mr Carter's admirably succinct argument, I do not accept that the sentence was in any respect manifestly excessive, whether as to head sentence, non-parole period, or as to cumulation. The individual sentences have been conceded to be within range. Each of the orders for cumulation is in my view within range and in no respect in breach of totality. Notwithstanding the applicant's plea of guilty and the other matters put in mitigation, the sentence is, I think, if anything, lenient in all the circumstances.
I would dismiss the application.
VINCENT, J.A.:
I agree, and do so for the reasons advanced by the learned presiding judge.
OSBORN, A.J.A.:
I also agree with the reasons and conclusion of the learned presiding judge.
CHARLES, J.A.:
The order of the Court is that the application is dismissed.
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