R v Drinovan
[2012] VCC 357
•15 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01211
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUMITRIE DRINOVAN |
---
JUDGE: | HIS HONOUR JUDGE MONTGOMERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 15 March 2012 | |
CASE MAY BE CITED AS: | R v Drinovan | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 357 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G Slim | |
| For the Accused | Mr R Van De Wiel |
HIS HONOUR:
1 Dimitri Drinovan, you have pleaded guilty to one charge of trafficking in a drug of dependence in a quantity not less than a large commercial quantity, one charge of possession of a false foreign travel document and two summary charges of dealing with property, namely amounts of cash suspected of being the proceeds of crime. You have admitted prior convictions, which for these sentencing purposes are relevant in that on 15 December 1994, you were convicted of attempting to possess heroin, and possessing heroin and sentenced to 15 months imprisonment in the Melbourne County Court, and in the Melbourne Supreme Court on 17 November 2004, you were convicted of conspiracy to commit an indictable offence, trafficking a drug of dependence and you were sentenced to a period of imprisonment of seven years with a non-parole period of five years.
2 The details of your offending are set out in the summary of the prosecution opening, Exhibit 1 on the file, and I attach that exhibit to the file. I do not now intend to recite the facts. The prosecution summary is accepted by the defence, and it is the factual basis upon which I will sentence. Any reader of these reasons can refer to the summary to place the sentence in its factual context. The prosecutor Mr Slim submitted that that this was an intensive, professional and sophisticated example of drug trafficking. He accepted that you had pleaded guilty at the first reasonable opportunity during the committal proceedings. He submitted that an appropriate sentencing range would be a head sentence of six and a half years to eight and a half years, with a non-parole period of four and a half years to six and a half years.
3 Your counsel Mr Van De Wiel made the following submissions; (1) He relied on your plea of guilty, and submitted that it had saved the court at least a month of court time if a trial had been conducted. I accept that your plea has great utilitarian value, shows remorse on your part, was made at the first reasonable opportunity and you were given the appropriate discount for such a plea of guilty.
4 (2) Medical submission, Mr Van De Wiel tendered a number of reports in respect to your problems with cancer and also two reports from psychologists. One from Carla Lechner, dated 6 October 2004, and one from David Ball, dated 24 February 2012. Carla Lechner's report was prepared for your Supreme Court matter in 2004. In that report, she set out your personal circumstances in some detail, and apart from general observations, I refer to that report for a full account of your personal circumstances. I have subsequently received copies of certain pages of your medical files from St Vincent's report detailing your attendance and treatment for cancer at that hospital.
5 Put generally, you left your home country of Romania at the age of 28 as a political refugee. In Romania, you attended school for some 12 years and worked there for some four to five years before you left the country illegally due to the political situation concerning yourself and your family. You have arranged for your wife to come to Australia, and your daughter was born here, but within a year of their arrival you separated. You then obtained work at a number of labouring positions in abattoirs and on construction sites. You attended courses to improve your English and moved to Melbourne and worked for Good Year tyres for three to four years as a truck driver. For many years, you have been involved in the Romanian community in relation to the sport of soccer. In the report to Ms Lechner, you expressed regret and shame for your offending there and she was of the opinion that the three years you had spent on remand for those matters were an important step in your process of rehabilitation.
6 Mr Ball's report, which was prepared for this plea hearing, indicated that he had looked at the report of Ms Lechner and the various medical reports in relation to your problems with cancer. At the time of the report, you had been in custody for 25 months and you told him that were employed as a gym (indistinct) in the prison, responsible for maintaining order and cleanliness in the prison gymnasium, and also acting as a personal trainer. You have completed occupational health and safety and food handling programmes whilst in custody, and you have concentrated on keeping yourself fit and you have received infrequent visits from a friend.
7 Mr Ball said that your mental status examinations were consistent and generally unremarkable. You told him of your cancer of the bladder problems, and your admissions to St Vincent's hospital whilst a prisoner. He said that you exhibited no signs or symptoms of frank mental illness. He assessed your IQ to fall within the normal range, and you impressed him as a man who has the capacity to exercise generally good judgement when not affected by drugs or influenced by negative peers. He again set out your family background, your employment and educational history, and your involvement with drugs.
8 It was not until 2009 that you were introduced to the drug cocaine by some peers following your diagnosis of cancer in late 2008. You then became a heavy user of that drug. You explained to Mr Ball how you say you became involved in your offending here. At the time you had feelings of despair and hopelessness in relation to your medical problems, and that was exacerbated by the death of a long-term and close friend Angela due to a drug overdose. You were released from prison in 2007, when you were told you had cancer. That was diagnosed in December 2008. Mr Ball set out the details of your friend's death due to that drug overdose. You told him that you were approached by people who had been lending you money to solve your financial problems and you began to use cocaine; up to two to three grams a day.
9 Mr Ball said you expressed what he assessed to be genuine remorse and regret for your offending, and he accepted full responsibility for your behaviour. He said that in his view, you did not suffer a mood or depressive disorder, but rather bereavement. You remain angry and guilt-ridden over the actions you took, and did not take, at the time of your friend's death and you have a morbid pre-occupation with your own worthlessness. He said that you presented as employable in the fitness industry as a personal trainer. He said that upon release from prison, you should have access to effective grief counselling.
10 (3) Mr Van de Wiel set out what had occurred since you were released from prison in 2007. You entered the industry of personal fitness, became a personal trainer, and were successful in that you could make a financial living at it. You were living in a one-bedroom flat when you were told of your cancer problems. You had, he said, no support from anyone else. He detailed the circumstances in June 2009, of your friend Angela's collapse and subsequent death. He said that you went to pieces and started using drugs. You developed a sizeable dependency. You became indebted because of your use, and your were inveigled upon to go to Sydney to collect drugs so that you could finance your drug habit. He submitted that there was no evidence of any enrichment.
11 (4) He asked me to accept through the plea and your expression to Mr Ball that you are remorseful for your actions.
12 (5) He told me of the courses you have attended in prison and how you are a mentor to younger prisoners.
13 (6) He submitted that your life in prison was much harder because of your medical circumstances. Although the cancer is in remission, as he has told me today, you still have further appointments at St Vincent's hospital, and thus it remains a constant worry to you. I take that into account in fixing the sentence that I have, in that because this is weighing on your mind, your time in prison will be somewhat more burdensome.
14 (7) He submitted that your life had not been an easy one due to the circumstances of your leaving Romania, and the current problems with your health.
15 (8) He submitted that in sentencing you, I should give consideration to a sentence that was "a little bit less than the Crown".
16 In response Mr Slim again described the operations as a sophisticated intensive one. He said that it was questionable that you had not been enriched through your activities here. The amount of money that was found on you, and which is the subject of the two summary matters he said, would seem to indicate that you were in possession of large amounts of money.
17 However, there is no evidence before me of your obtaining any properties or assets because of your involvement here. I accept that the money you earn from the drug trafficking financed your lifestyle, including your drug habit. Mr Slim submitted that many people have had the issues that you have had and have not resorted to a life of crime.
Sentencing considerations18
19 I have taken into account the sentencing principles and considerations set out in s.5(1) and (2) of the state Sentencing Act and s.16(A) and s.17(A) of the Commonwealth Crimes Act.
20 General deterrence plays an important role in the sentencing of any drug trafficker. In your case, because of your prior convictions, specific deterrence also has a large role to play. For approximately two to three years of your release from gaol in 2007 for similar matters, you again were involved in trafficking drugs. You had received a substantial prison sentence for your offending in 2004. I agree with the prosecutor here that the drug operation was intensive and sophisticated and in your role, you were an integral part of that operation. However, I also take into account the mitigating factors and in particular your plea of guilty, which assumes large importance in these types of cases because a very large amount of court time is saved by a guilty plea, in addition to being an indication of your remorse, which I accept.
21 I accept that your time, because of your illness with cancer, has been difficult and will remain so. I take that into account. I have taken into account all of the matters and documents tendered by both the prosecutor and your counsel, including not specifically mentioned in these reasons.
22 I sentence you as follows; on Charge 1, I sentence you to a term of imprisonment of six and a half years. On Charge 2, the Commonwealth offence, I sentence you to a term of imprisonment of one year; the starting date of that sentence to be 15 March 2012. In relation to first summary matter, I sentence you to a term of imprisonment of six months to be served concurrently with the sentences imposed on Charges 1 and 2 and on the second summary matter, I sentence you to a term of imprisonment of six months to be served concurrently with the sentences imposed on Charge 1, Charge 2 on the first summary matter.
23 I declare that you must serve a period of four and a half years before becoming eligible for parole. I declare under s.18 of the Sentencing Act that the period of 753 days you have spent in custody is to be reckoned as the period of detention already served. Pursuant to s.6AAA of the Sentencing Act, I state that but for your pleas of guilty, I would have sentenced you to nine years imprisonment with a non-parole period of seven years.
24 There was some orders. Have I signed them or not?
25 VOICE (from body of court): No, you haven't.
26 HIS HONOUR: You were going to amend something in the - - -
27 MR SLIM: Yes, Your Honour, I just wanted to raise that. I have looked at - before you started your reasons, there was an amendment to some details sought in the prior convictions for 15 December 1994.
28 HIS HONOUR: You can sit down Mr Drinovan.
29 MR SLIM: Prior conviction for 15 December 1994. I do seek an amendment.
30 HIS HONOUR: Any objection to any of this Mr Van de Wiel?
31 MR VAN DE WIEL: No. What I indicated to Your Honour previously is that he was ordered to serve a period of 15 months imprisonment. What in fact the records show is that he was ordered to serve two years imprisonment, but to be released after having served 15 months. So there was a recognizance for a further nine months.
32 HIS HONOUR: All right.
33 MR VAN DE WIEL: And the amendment shows that.
34 HIS HONOUR: All right, can you - - -
35 MR VAN DE WIEL: We have no objection.
36 HIS HONOUR: Can you get your instructor to put those amendments in, please?
37 MR SLIM: Yes, certainly. And I take it there's no objection at the late timing of this - - -
38 MR VAN DE WIEL: No.
39 HIS HONOUR: No. All right. The orders?
40 MR SLIM: I remind Your Honour as I've been reminded that Your Honour needs under the Commonwealth Act to state your reasons - - -
41 HIS HONOUR: Sorry, what was that section again?
42 MR SLIM: 19(A)(C)
43 HIS HONOUR: 19(A)(C), yes. In relation to the sentence imposed on Charge 2, on which I have not imposed a recognizance order under s.19(A)(C), sub.s 4, I have declined to do so having regard to the nature and circumstances of the offence concerned and to the antecedents of the person, I am satisfied that such an order is not appropriate, and I do so after a consideration of the facts of the case and the time that the prisoner has spent in custody and also the entry of his plea of guilty and I cause these reasons to be entered in the records of the court by way of the transcript of these sentencing reasons.
44 MR SLIM: As Your Honour pleases.
45 HIS HONOUR: Orders?
46 MR SLIM: I think my instructing solicitor's busy with the red pencil, Your Honour. If you just bear with us.
47 HIS HONOUR: I think I - I know. What time did I say tomorrow?
48 VOICE (from body of court): 9.30.
49 HIS HONOUR: I'll just read to you to the actual order, in relation to the 6AAA and I'm not sure whether it's right or not. I declare that but for your pleas of guilty, I would have convicted and sentenced you to a total effective sentence of imprisonment across both state and Commonwealth matters of nine years with a non-parole period of seven years. As to whether I actually have to go into the wherefores and so forth of that, I don't think I have to. If I do, too bad.
50 MR VAN DE WIEL: We can take it for granted that Your Honour would say, "And I rely on the facts submitted in the summary of the prosecution case which is before me," and we'll take that as read, Your Honour.
51 HIS HONOUR: Yes, but I mean as to whether I can give a nine with seven 6AAA without explaining non-parole periods and recognizance releases and - - -
52 MR VAN DE WIEL: I don't think you'd need to. I don't think you'd need to, Your Honour. And I can assure Your Honour that that's not going to be the basis of any application anywhere else.
53 HIS HONOUR: That document's been amended, I grant leave to amend the criminal history in the manner outlined by the prosecutor. Where are they? I've been handed a disposal order sought under s.77(1) of the Confiscation Act. Do you want to say anything about that Mr Van de Wiel?
54 MR VAN DE WIEL: No, that's by consent.
55 HIS HONOUR: All right, I'll sign that by consent. I make an order under s.77(1) of the Confiscation Act for disposal in the terms for the order that I sign. 464 retention, Mr Van de Wiel?
56 MR VAN DE WIEL: No difficulties with that either, Your Honour.
57 HIS HONOUR: All right, I make an order under s.474(Z)(F)(B) sub.s 1 for the retention of forensic samples. Having regard - considered the seriousness of the circumstances of the offending, I am satisfied that in all the circumstances, the making of the order is justified for the following reasons. The seriousness of the offending, and the prior convictions and the orders by consent are not opposed. There's the forfeiture orders.
58 MR VAN DE WIEL: No problems.
59 HIS HONOUR: All right, I make an order under s.32(1) of the Confiscation Act, forfeiture order in the terms of the order are signed. Anything else? Could you remove the prisoner please? Adjourn the court until 9.30 tomorrow.
- - -
0
0
0