R v Drinovan
[2004] VSC 460
•17 November 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No.1533 of 2002
| THE QUEEN |
| v |
| DUMITRIE DRINOVAN |
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JUDGE: | SMITH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 August, 31 August and 25 October 2004 | |
DATE OF SENTENCE: | 17 November 2004 | |
CASE MAY BE CITED AS: | R v DRINOVAN | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 460 | |
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Crime – sentence – conspiracy to traffic cocaine overseas – trafficking heroin – pleas of guilty – issues of parity with co-offenders.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. N. Robinson | Commonwealth D.P.P. |
| For the Accused | Mr. P. Faris Q.C. | Stephen Andrianakis & Associates |
HIS HONOUR:
Dumitrie Drinovan has pleaded guilty to two charges:
(a)that between 19 October 2000 and 27 October 2000 at Melbourne and elsewhere, he agreed with one Kowadlo, a person referred to as a “Om” and other persons unknown, to possess cocaine without due authorisation for the purpose of transporting the drug contrary to the laws of Costa Rica; and
(b)that between 2 December 2000 and 12 December 2000, in Victoria and elsewhere, he with Milan Radojevic trafficked in heroin contrary to s 71(1) of the Drugs, Poisons and Controlled Substances Act 1981.
The maximum penalty for each charge is 15 years’ imprisonment.
Drinovan has also admitted a prior conviction; namely, that on `5 December 1994 he was convicted of one count of possessing heroin and one count of attempting to possess heroin and was sentenced to six months imprisonment on the possession charge and two years imprisonment on the attempt charge. A non-parole period of 15 months was fixed on a recognisance of $5,000 to be of good behaviour for 9 months thereafter.
Background of prisoner
Drinovan is 46 years of age. He came to Australia after escaping from Romania at the age of 28 years. He had attended school in Romania for 12 years. He described himself as an above average student. He specialised in the area of metallic construction. He worked in Romania for four to five years before escaping. He crossed the border and spent a year in a Serbian refugee camp. He had experienced victimisation in Romania because his grandfather had been expelled from the Communist Party. In crossing from Romania into Serbia, he left behind his family and wife. He spent a year in the refugee camp and describes that experience as terrifying. He says that he witnessed a friend being shot and the friend’s wife being raped. He says that he was physically assaulted a number of times. Ultimately he was granted permission to travel to Australia. He settled in Sydney and arranged for his wife to join him. A daughter was born here but he and his wife separated within one year. In Australia he has not been able to find regular work. Initially he worked in an abattoir then on a construction site. In his first five years in Australia his English was poor. He then attended a number of courses to improve his English. He moved to Melbourne where he worked for a couple of years with Goodyear Tyres, then three to four years in the construction field and then as a truck driver. He was involved in another relationship, a four year relationship with a woman named Camilia. At the time of his arrest he was seeing a Ms Maggie Topic and she continues to be a support for him. He has a number of acquaintances in the Romanian community but has few close friends.
The circumstances of the cocaine offence
In 2000, the Australian Federal Police were engaged in an investigation which included an investigation of Drinovan and Kowadlo. The prosecution case is that Drinovan and Kowadlo and others, including a man known as “Om”, entered into an agreement to obtain cocaine in Costa Rica and to transport it to Europe, in particular, the Netherlands. The prosecution case was that Om had contacts in South and Central America and arranged the cocaine and its supply, Drinovan provided some of the funds for the purchase of it and also arranged for Kowadlo to travel from Australia on 22 October 2000 to Costa Rica where he collected the arranged cocaine in liquefied form for its transport. Kowadlo was arrested by Costa Rican authorities on 26 October when he attempted to leave Costa Rica. He was found to be carrying a quantity of cocaine in liquid form. Drinovan was in Victoria at all relevant times and his involvement was established by evidence of telephone intercepts. Kowadlo was also in Victoria initially and then left Melbourne to fly to Costa Rica. Om appeared to be based in Europe with connections in Central America and South America. The conversations revealed that Om organised the cocaine and dealings in America while Drinovan partly financed the purchase of the narcotics and also assisted Kowadlo. The intercept suggests that the amount supplied by Drinovan was $10,000. When Kowadlo was arrested he had $10,455 in his possession (Australian). The intercepts also disclosed Drinovan advising Om of Kowadlo’s name and his travel details and record Drinovan telling Om that he was “sending someone to exchange – I’m sending someone to exchange right now “. The intercepts also reveal that Drinovan and Om discussed the provision of some of the cocaine for Drinovan’s own possession. The seized material contained 9,831.15 grams of cocaine and the cocaine content of the liquid seized was 63%. The telephone intercepts also record Drinovan speaking with one Alexander Ristic concerning Kowadlo’s failure to make contact with Ristic. Kowadlo was arrested on 26 October 2000. Drinovan was arrested on 8 March 2001. When interviewed he denied any involvement.
The heroin count
Drinovan and one Radojevic were partners acting in concert in the offence charged. Drinovan was the one who made the arrangements and passed on information to Radojevic. Radojevic collected and transported the heroin. Drinovan organised the supply of the heroin from a man called “Jimmy”, or his associates, in New South Wales. Radojevic went to New South Wales, collected the heroin and returned to Melbourne. On 10 December 2000 he telephoned the accused and arranged that he visit Radojevic at his premises in Brunswick East. Drinovan drove there in a green jeep registered number NLW 596. It was registered to a company in which Drinovan had been a registered officer and of which Radojevic was at the time a registered officer. The Crown case was that Drinovan provided the jeep for Radojevic to transport the heroin to Western Australia. On the journey to Western Australia, Drinovan rang Radojevic to check on his progress. At 1.40 pm on 12 December 2000, Western Australia police acting on information from the Australian Federal Police intercepted the jeep being driven by Radojevic at the town of Goomalling in Western Australia. When police searched the jeep they found two blocks of heroin wrapped in foil among clothes in a sports bag in the jeep. Each block was weighed and found to be 351 grams. One was 50% pure heroin and the other was 51% pure heroin. The total of pure heroin was therefore 354.5 grams. The telephone intercepts reveal phone conversations between Drinovan and Radojevic concerning the organisation of the payment for and collection of the heroin in Sydney, phone calls dealing with the problem of some apparent delay in the meeting between Radojevic and “Jimmy” on 6 December 2000. The handover of the jeep was also referred to in telephone conversations and police observed that handover occur when Drinovan visited Radojevic at his house in East Brunswick. The telephone intercepts also picked up a conversation between Drinovan and Radojevic in which they discussed the problem of fitting the blocks of heroin into some unidentified container. Subsequently, Radojevic simply hid them among the clothing in the sports bag as mentioned above. When interviewed by the police, Drinovan acknowledged that he knew Radojevic, as Charlie, that he drove a green jeep vehicle which was not his but belonged to a company TND and that other people had been driving it. He said that Charlie used to drive the vehicle from time to time and was driving it because he was the director of the company. He agreed that on occasions he called Charlie on the telephone. When asked to explain the content of some of the intercept telephone conversations he said he did not know what the conversations were about, but that it was impossible for them to be about drugs.
Circumstances leading up to the pleas of guilty
Drinovan was initially charged and apprehended in March 2001. He was granted bail in September 2002. He was directly presented in December 2002 and was again incarcerated and then granted bail in March 2003. In October 2003 he fled the State. He was subsequently arrested and since then has been in gaol on remand.
After directions hearings in and between March and August 2004, Drinovan was arraigned on the heroin count in the County Court on 12 August 2004. He pleaded guilty on arraignment that day. In relation to the cocaine charge, subsequent to its transfer to this Court, Drinovan was arraigned on 31 August 2004 and pleaded guilty to the charge on that day.
Sentences imposed on co-offenders
In relation to the cocaine charge, Kowadlo was sentenced to 5 years and 4 months imprisonment in Costa Rica with a reduction of 1/3 in accordance with Costa Rican legislation. The maximum penalty available was 15 years’ imprisonment. The court in imposing the penalty referred to the fact that the accused Kowadlo did not have prior criminal convictions and that the defence and public prosecution both requested the imposition of a sentence of 5 years and 4 months imprisonment and there being no reason to do otherwise that sentence was imposed. Subsequently, Kowadlo was released after serving half his sentence (2 years 8 months) on the grounds of good behaviour whilst in prison. Thereafter he was required to spend some nights in prison and was engaged in supervised work on other days. The Crown concedes that the period of 2 years 8 months should be regarded as his minimum term.
Radojevic appears to have pleaded guilty and was sentenced on 30 March 2001. The maximum penalty available was 15 years’ imprisonment. Hammond CJDC stated that Radojevic :
“had been contracted to undertake travel from Melbourne to Perth, to check into a near city motel and await telephone calls to your mobile number which call was no doubt to indicate the next steps to complete what was undoubtedly an interstate importation of heroin. The heroin incidentally is said to be worth in the order of $100,000 and I accept that information subject always to the qualification that these estimates may vary considerably.”
His Honour concluded that Radojevic was:
“Acting as a courier or deliverer in this matter for some form of reward which may or may not exceed . . . $1,200 . . .”
Radojevic was 62 years of age at the time of sentence and had no prior convictions or criminal history. He was married to a much younger woman with a child aged 6 years. There was considerable evidence before his Honour to indicate that the child had significant behavioural problems. He and his wife lived in a two bedroom flat in Melbourne close to the child’s school.
It appears that Radojevic had through his counsel raised an issue of duress. This argument was rejected by his Honour who noted amongst other things that this issue had not been referred to the police when he was interviewed at a time he gave them a degree of misleading information. His Honour referred to Radojevic as a “paid operative” who was bringing the heroin to Western Australia from
“an unnamed person to an undefined destination. You were an integral part of the operation and were consciously ferrying to this State a very significant quantity of a very deleterious drug.”
His Honour then referred to the question of appropriate tariffs. His Honour referred to remarks of Ipp J suggesting an appropriate starting range of between 11 and 15 years imprisonment for a case such as that of Mr Radojevic. It being a case involving possession of heroin with intent to sell or supply, quantities of between 600 – 700 grams with a purity of about 55% or 65%, the offender being a courier well aware of the quantity and quality of the heroin in his possession, and being one who actively participated in the attempt to conceal it and one who committed the offence for commercial gain rather than to finance an addiction. The other feature of the range was that the person be close to the source of the importation. His Honour then indicated that he would reduce the figure to 10 years imprisonment as a starting point because he was not satisfied that he was close to the source of importation. He also made some allowance for the effect that incarceration of Radojevic would have on his family, an effect that he regarded as greater than the “norm”. For that reason he proposed to reduce the period of 10 years to 8 years. He then indicated that he would further reduce that figure by 2 ½ years for the plea of guilty. The result was therefore a term of imprisonment of 5 ½ years. Mr Radojevic was released from prison on parole on 11 October 2002 after serving 22 months of his term of imprisonment. The terms of his parole required amongst other things that he remain in Western Australia. The Crown accepts that the 22 months should be accepted as the minimum term imposed.
Gravity of the offences
Counsel for Drinovan submitted that the cocaine charge is a most unusual one. It involves the entry into a conspiracy in Victoria to engage in illegal conduct overseas. Counsel did not, however, suggest that the fact that the substantive crimes would be committed overseas and not Victoria were something that should in some way reduce the criminality of what was involved. Counsel submitted that in that offence Drinovan was essentially a facilitator and a minor investor. There is little evidence, however, from which to determine whether he was a minor investor or a major investor. The fact is that he invested something of the order $10,000 in the transaction and played a major role in facilitating the enterprise by being the communicator between Kowadlo and Om in Costa Rica. His counsel put that the cocaine charge was the more serious charge having regard to the quantities involved. He also submitted that Drinovan’s role in the heroin case was more limited. It seems to me, however, that while it might be said that he was in partnership with Radojevic, nonetheless he was the one giving instructions to Radojevic and not vice versa.
Parity
Counsel for Drinovan submitted that issues of parity arose in this case. That was not disputed by the Crown. Counsel submitted that the roles of the co-offenders were not that dissimilar. One point of difference which he conceded was the prior conviction of Drinovan. Kowadlo and Radojevic did not have prior convictions.
It seems to me that there are other points of difference. The evidence points to Drinovan being an organiser and a person giving instructions. In relation to the cocaine offence he appears to have been an investor as well. Nonetheless any sentence imposed should have regard to those imposed on the co-offenders.
The pleas of guilty
Drinovan is entitled to a discount on the sentence that would otherwise be imposed having regard to his plea of guilty. It seems that for some time he has wished to plead guilty to the heroin charge. In relation to the cocaine charge, however, the plea of guilty has only arrived at a relatively late stage. I accept counsel’s submission, however, that he had pleaded not guilty on legal advice that there were significant constitutional issues as to the legislation creating the unusual offence. It was only after he had decided that he wanted to have the matter finalised and so allow him to get on with his life, rather than provide a test case for appellate courts, that he decided to plead guilty. Counsel submitted that he has also reached a point where he is genuinely ashamed and regrets his offending. It is put that there is genuine remorse. This is not challenged by the prosecution. The presence of remorse appears to be accepted by the psychologist, Ms Lechner, who interviewed him on three occasions in July, August and September of this year. His behaviour in prison would also support that conclusion. The pleas of guilty have resulted in considerable saving for the community. The heroin trial would have lasted two weeks. The cocaine trial would have lasted considerably longer – of the order of four to five weeks. It also involved the obtaining of a number of witnesses from Costa Rica and interpreters. It would have been a complex and difficult trial. It would also have had difficult legal questions to be argued and determined, questions which caused that matter to be brought to this Court. Whatever happened to the legal arguments at the trial, it was inevitable that there would have been appeals. Thus the plea of guilty in relation to the cocaine count warrants a greater discount than that which should be granted in respect of the heroin case.
Rehabilitation
Material was placed before me supporting an argument that changes have occurred in Drinovan which support the conclusion that a rehabilitation has been occurring. Apart from the information contained in the psychologist’s report that supports that conclusion, there is the fact that he has been selected within the prison system to be one of the few persons to be entrusted with giving support to young offenders. To do that he had to take part in a program and be approved. He has taken part in a number of other programs designed to improve his qualifications in the building industry. He has completed those courses successfully. He has engaged in those courses over the period of his remand which as at the time of the hearing of the plea was 939 days. A consequence of his arrest has been that over time he has come to appreciate the significance of his actions and his role in the pernicious distribution of drugs. Many of the young people in gaol whom he assists have drug related problems.
Appropriate penalty
Counsel for Drinovan submitted that the appropriate penalty to be imposed in respect to the cocaine charge is a term of imprisonment of 5 years with a non parole period of 3 years. In relation to the heroin charge he submits that the appropriate period is a sentence of imprisonment of 4 years and a non parole period of 2 years. He submits that a period of 2 years of the term of imprisonment should be made concurrent resulting in a total effective sentence of 7 years’ imprisonment and a non parole period of 5 years’ imprisonment. Counsel for the Crown conceded that such a sentence would be in the range appropriate in all the circumstances.
In my view, Drinovan was playing a significant role in what would seem to have been two wholesale drug transactions. That having been said, however, when regard is had to the effective sentences of the co-offenders, the changes that appear to have occurred in Drinovan’s outlook and behaviour and the considerable benefit for the community of his decision to plead guilty coupled with true remorse, the sentences suggested by his counsel are properly conceded by the Crown to be within the appropriate range of sentences. There are grounds for concluding that slightly higher terms of imprisonment should be imposed on each count but bearing in mind that a degree of concurrency would be appropriate, and that the relevant sentencing considerations would not require an effective sentence in excess of 7 years’ imprisonment with a non-parole period of 5 years, the fixing of higher sentences on each charge become somewhat academic.
In all the circumstances, on the cocaine charge I propose to impose a term of imprisonment of 5 years. On the heroin count, I propose that a sentence of imprisonment of 4 years be imposed. Two years of the 4 year term should be served concurrently with the 5 year term resulting in an effective sentence of 7 years imprisonment. A non parole period of 5 years should be fixed.
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