PDPP v Livathinos [2013] VCC 1384 (2 October 2013)

Last Updated: 17 December 2013

IN THE COUNTY COURT OF VICTORIA

Revised (Not) Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL DIVISION

CR-12-00071

DIRECTOR OF PUBLIC PROSECUTIONS
v
THEODORE LIVATHINOS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 October 2013
CASE MAY BE CITED AS:	DPP v Livathinos
MEDIUM NEUTRAL CITATION:	[2013] VCC 1384

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

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S. Young
For the Accused	Ms D. Karamicov

HIS HONOUR:

1 Theodore Livathinos, you have pleaded guilty to one charge of attempting to import a tier 1 goods, three State charges of possession of a drug of dependence, one charge of possessing a prescribed precursor and one charge of possess identification information with intent to use that information.
2 Those crimes carry maximum penalties of five years, one year, five years and three years respectively.
3 The first is a Commonwealth matter and the rest are State matters.
4 You also face one summary charge of being in possession of a prohibited weapon.
5 You are now 42 years of age. You pleaded guilty to a settled indictment and I regard that as a plea of guilty at an early opportunity. People should be encouraged to engage in such negotiation.
6 I accept that your plea of guilty at least in the long run is accompanied by appropriate remorse and I take into account there the fact that I accept that your conduct would have caused shame to an otherwise law-abiding and hardworking family. You must also of course get the utilitarian benefit of that plea of guilty.
7 There has now been a considerable delay since the offending which occurred back in November of 2009. The reasons for that delay need not be attributed to anybody. The fact of the matter is however that you were not charged for in excess of a year and it has taken this long to come on. The delay is a very significant one and is one which I take into account in the sense that you have had this matter hanging over your head now for an extended period of time. You obviously were interviewed a long time before you were charged.
8 You do have prior convictions and findings of guilt. Of most importance in relation to that are that you have two prior convictions for trafficking in a drug of dependence for which inter alia you received an eight month suspended sentence. These crimes do not breach that suspended sentence but the nature of it indicates that they were far from trivial offending as indeed was one of your first appearances in a courtroom.
9 The circumstances of the offending are somewhat complicated and I do not propose to summarise it in any real form. What I will do is annex the Crown opening which has been tendered as an exhibit to these sentencing remarks. I will simply go through each of the charges and describe briefly what it is about.
10 Charge 1 which is by far, in my view, the most serious of these charges regards to attempting to import anabolic steroids. The substance that was actually landed in Australia, if I can use a neutral term, was not an anabolic steroid but that is what you believed you were bringing into the county. What happened was that in a relatively sustained period of conduct you were instrumental in the bringing to Australia of a package which contained unlawful substances. It is to be noted that the package indeed contained two 4 litre plastic bottles filled with liquid. From my limited understanding of weights and measures that amounts to 8 kilograms, that is a significant weight indeed.
11 I baulked at the word "large" coming from the Crown because I do not know what other alternative charges there are but be as it may this is not a trivial offence at all.
12 The others matters relate to drugs found on you when searched on 26 November and there is nothing to suggest that they were other than for personal use.
13 The last charge of possessing identification information led to a discussion between myself and the prosecutor. I have never seen this charge laid before. Having now had the opportunity of examining the Crimes Act I think my initial view is correct, that the possession would have to relate to future conduct not past conduct. Be that as it may you have pleaded guilty to it as part of a negotiated settlement and I am not buying into that and one day might be held to be wrong in any event.
14 You were found also on that day in possession of a stun gun which was in your motor vehicle.
15 As I say I am exhibiting, annexing at least the exhibit to my sentencing remarks which outlines what the offending was about.
16 It is clearly serious. You cannot do this. It calls for the application of general deterrence in particular and in your situation where you do have prior convictions for drug involvement specific deterrence as well as denunciation and appropriate punishment. It is clear that no sentence other than one which involved an immediate term of custody would be appropriate in this situation particularly bearing in mind your prior convictions.
17 Your history was outlined in a report from Ms Matthews who is known to me which was tendered as well as reports from Southern Health and I can go through that in very short compass.
18 Your family emigrated from Greece around 1970. You, until the age of 15 or 16, were in St Kilda where you went to school. You ultimately left high school in around about year 12 and had some difficulty through because the early schools perhaps had not had the standard of education that was needed. After that, and I again can do this in very short compass, you have, from what I can gather up until recent times always worked. You have been involved in security and a number of other occupations and would appear to have been gainfully employed over an extended period of time.
19 You have had a number of relationships, the first of which involved the birth of two children and I take into account that your younger child is now 17 years of age and has in recent times been in some difficulty as a result of drugs and that you will be going into custody, him having been put into your care, knowing the example that you have set him.
20 You have very good family support which is evidenced by the people who have come along to court today. You have, on the material before me, been using steroids or anabolic substances for a long time.
21 You are 42 years of age now. It would appear, as a result of that long term drug use which has also included ice since around about 2000 and other drugs as well, that by May of this year you were taken to hospital with severe cardiac failure secondary to a dilated cardiomyopathy. The opinion is that there is a real chance that that heart condition was caused by your drug use. That in itself is a, as your counsel put it, extra curial punishment.
22 During the course of your time in hospital, this is in May of this year, you were found to have serious renal failure. You are not healthy. I take into account that for you being in custody will be harder than for other prisoners because of not only your health itself but the fear that your severe depression which is described in the report of Pamela Matthews will increase and that you will have anxiety because of your physical health and your fears that it may not be able to be maintained.
23 I have no doubt that the gaol are adequately able to care of your particular needs but I take into account your state of mind in relation to that. And, as I have indicated, also your state of mind in relation to your child.
24 This is your first time in custody. Having read the report of Pamela Matthews which outlines the reasons for the offending and everything else I am simply sentencing on the basis that insofar as Charges 2 to 5 were concerned I would not have imposed custodial sentence. So far as Charge 6 is concerned I have grave doubts whether you should have pleaded to it but that is in a state of flux as to what sort of penalty that crime would attract. It has a maximum of three years.
25 I will be giving a custodial sentence for each of those because it is the only pragmatic way of dealing with this. To impose fines for someone in your situation would be ridiculous because you would just them turn them into time which would be ordered to be concurrent in any event. I cannot really impose a Community Corrections Order which is what I would have done because the sentence which I am about to give you of imprisonment precludes you from entering into such an order.
26 I think that your prospects of rehabilitation should be good. I am told from the bar table and have no reason to doubt that since you have been diagnosed with very serious health problems over the last six months that you have abstained and intend to abstain from drug use. A restoration of your previous drug use may well, I would have thought looking at this material, result in your death. It is a matter for you.
27 That being the case it is clear that if you do not use drugs, bearing in mind your very good work records, there is no reason in the world why you should re-offend.
28 The report of Pamela Matthews, as it always does, goes into a great deal of detail and I think I have just simply outlined the salient points. Particular there is the support that you have from a recent partner and the support from your family. Again with the medical records I think I probably should just for completeness read in what the Monash Health report said in a report to your GP who was still looking after you.

"Theo is a 42 year old man who was admitted to the coronary care unit at Dandenong Hospital in May 2013 with severe cardiac failure secondary to dilated cardiomyopathy. At the time of admission he had at least a mildly dilated left ventricle with severe global left ventricular hypokinesis and would also appear to the moderate right ventricular hypokinesis. Left ventricular ejection fraction was severely reduced at around 10 per cent. The cause of his cardiac myopathy was uncertain but possibilities include: viral myocarditis possible secondary to the use of illicit drugs including ice or possibly ischemic heart disease although the last seemed unlikely. He had poor renal profusion during his admission and developed acute renal failure probably related to acute tubular necrosis. At the time of his discharge from hospital his cretonne was 190 degrees."

29 I am told from the bar table and again accept that you had recent tests which showed that there has been some improvement but that you remain under the care of your GP and also under the care of Monash Health.
30 Whatever the background and circumstances of this offending that has been sensibly resolved in my view it must carry a custodial sentence that indicates that this sort of conduct cannot be tolerated. I take into account all the matters referred to in s.16 and in the end have decided upon the following sentence:
31 On Charge 1, you are sentenced to be imprisoned for a period of 21 months.
32 You are to be released after seven months on a $500 recognisance to be of good behaviour for a period of three years. That sentence is to commence today.
33 On Charges 2, 3 and 4, one month on each.
34 On Charge 5, two months.
35 On Charge 6, one month.
36 On the summary matter which I have taken into account, one month.
37 All those from Charge 2 to 6 including the summary matter are to be served concurrently with each other and concurrently with the sentence imposed upon Charge 1. So effectively there is a 21 month sentence. You are to be released after seven months upon entering into the recognisance that I have referred to.
38 There was some discussion about a s.6AAA. In my view in the situation it would be absolutely artificial. I do not buy into the arguments as to whether it needs to be a Crown matter anyway but it would be positively misleading to endeavour to give one.
39 All right, are there any other orders I have to make?
40 MR YOUNG: Your Honour, I have a draft recognisance release order which I will complete the details of now.
41 HIS HONOUR: Yes, if you could do that, just take a seat.
42 MR YOUNG It can be signed by Your Honour and then signed by the - - -
43 HIS HONOUR: Yes.
44 MR YOUNG: Sorry, can I just clarify the details.
45 HIS HONOUR: Yes.
46 MR YOUNG: Was that, Your Honour, 21 months?
47 HIS HONOUR: 21 months, released after seven.
48 MR YOUNG: A recognisance of $500?
49 HIS HONOUR: $500, for three years.
50 MR YOUNG: Thank you.
51 HIS HONOUR: And sentence to start today.
52 MR YOUNG: And the sentence is in relation to 2, 3, 4 and 6, one month?
53 HIS HONOUR: Yes, and 5 is two months.
54 MR YOUNG: Yes. I notice that the space for signing by Your Honour and dating is on the front page and then on the reverse of that you are required
to - - -
55 MS KARAMICOV: If my instructor could help him.
56 HIS HONOUR: Yes please.
57 MS KARAMICOV: Thank you.
(Orders signed and acknowledged.)
58 MR YOUNG: Your Honour will recall that under the terms of the Act Your Honour is required to explain the terms of the bond and the consequences of failure to comply.
59 HIS HONOUR: I do know I have got to do that and I will do it.
60 MR YOUNG: And could copies of your order be made available to the Departments in question.
61 HIS HONOUR: Of course, straightway, yes. It is any offence, gaolable, the breach?
62 MR YOUNG: If there's a breach the person may be required to serve the balance of the term.
63 HIS HONOUR: No, I understand that but the breach, it's got to be something that he can go to gaol, isn't it? You can't breach it by speeding?
64 MR YOUNG: It's a breach of any of the terms of the bond but in this case the only term is to be of good behaviour.
65 HIS HONOUR: Yes, but what I'm saying is that it is any offence carrying imprisonment, the breach?
66 MS KARAMICOV: Yes.
67 HIS HONOUR: A speeding won't breach.
68 MR YOUNG: Yes, that's correct.
69 HIS HONOUR: That's all I'm asking. That's your signature there? Yes, all right, this won't take a sec. What happens is that after seven months you'll released, all right, you still have 14 months to go. If during the period of that 14 months you commit any offence that is punishable by imprisonment and really bear in mind that includes possessing, possess amphets or meth or anything, all right, you'll breach it. You can be ordered to do the rest. You know you were pinched for trafficking or something you'll be starting at 14 months. Just so you clearly understand that.
70 All right, I thank counsel for that.
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