DPP v Basdekis [2014] VCC 104 (7 February 2014)


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

DIRECTOR OF PUBLIC PROSECUTIONS

v

YIANNIS BASDEKIS

JUDGE:	Her Honour Judge Hampel
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2014
DATE OF SENTENCE:	7 February 2014
CASE MAY BE CITED AS:	DPP v. Basdekis
MEDIUM NEUTRAL CITATION:	[2014] VCC 104

Catchwords: Sentence – Two indictments – Trafficking in a drug of dependence – Commercial quantity – Possession – Prohibited person possessing a firearm – Possessing a prohibited weapon – Early pleas of guilty – Relevant criminal history – Drug addiction – Treatment – Relapse – Family support – Relative youth – Reasonable prospects for rehabilitation

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Pickering	OPP

For the Prisoner	Mr C. Dane QC	Garde-Wilson Lawyers

1 Yiannis Basdekis, you have pleaded guilty to six different charges arising from two episodes of offending.

2 On Indictment D10249564, you have pleaded guilty to one charge each of trafficking in a drug of dependence, methylamphetamine, in a commercial quantity; trafficking in a drug of dependence, 1,4 butanediol, a drug with similar effects to GHB, and possession of a drug of dependence, cocaine.

3 These charges followed your arrest on 24 January last year and are confined to trafficking and possession on that single day.

4 On the second Indictment, D13442328, you have pleaded guilty to one charge of possessing a firearm whilst prohibited, one charge of possessing a drug of dependence, GHB, and one uplifted summary charge of possessing a prohibited weapon without exemption or approval, namely, a high-powered laser pointer. This offending occurred approximately 10 months later on 17 November 2013.

5 Dealing first with the charges on the first Indictment. In 2013 you were living in what I would call the family home that you and your brother shared, and in another home you shared with your girlfriend, Li Fang Saw, the co-accused in this matter. You and Ms Saw had been under investigation for trafficking for some time before your arrest on 24 January 2013. On that date, the police executed a warrant at your shared home.

6 When the police arrived, you were seen to run out the back door and throw a box over the back fence. The police later retrieved this box and an examination of its contents revealed 10 sealed plastic bags containing a total of 439.7 grams of methylamphetamine, that is, just short of half a kilo. This is the subject of Charge 1.

7 The search also revealed 412.4 grams of 1,4-butanediol, the subject of Charge 2, and a small amount, 3.9 grams, of cocaine, the subject of the possession charge, Charge 3. These two latter drugs were found in the shared property rather than in the box that had been thrown over the fence.

8 You and Ms Saw were both arrested at your house. As is your right, when taken to the police station, you made a no comment record of interview. Police later retrieved information from mobile phones owned by you and Ms Saw that included SMS messages illustrating what is said to be an extensive involvement in drug trafficking. I note that the SMS messages do not support the account you gave to the psychologist, Mr Cummins, when interviewed, that is, that you were guilty by knowledge, in that your girlfriend at the time was trafficking methylamphetamine and you were residing with her.

9 Having said that, as I noted at the start, you fall to be sentenced for trafficking in respect of the methylamphetamine and the butanediol on the day of arrest, namely, 24 January last year.

10 Following your arrest, you were on remand until you entered the Raymond Hader Clinic on 31 May last year. You successfully completed its three-month intensive residential course and you were living in less restrictive supported accommodation and still engaged in treatment with the Raymond Hader Clinic. You were apparently doing well, returning clean screens and engaging well with treatment.

11 At the time of the second arrest and second set of charges, you were apparently on weekend leave from the clinic. You were observed by a passer-by to be slumped against the wheel in your car at the intersection of Thomas and Walker Streets in Dandenong. In an attempt to wake you, the passer-by tapped on the window but noticed a gun in the compartment of the driver's door. This led, not surprisingly, to the police being called and your arrest. The possession of this firearm, a loaded firearm in the compartment of the driver's door, gives rise to Charge 1 on this second Indictment.

12 You were arrested and a search of your bag revealed a high powered green laser pointer which is the subject of the uplifted summary charge and two quantities of GHB, some contained in a pen-like object and some found in a bottle. Possession of the GHB in your bag and in the bottle in the car constitutes Charge 2 on the second Indictment and the possession of the laser pointer constitutes the uplifted summary charge to which you have pleaded guilty.

13 By your guilty pleas to these charges, you acknowledge that your assertion in the record of interview that was conducted with you that day, that the liquids were not GHB and that the laser pointer was an e-cigarette, were false.

14 You were remanded in custody and you have remained there ever since. You pleaded guilty at the earliest opportunity and so far as the second set of charges are concerned, that means even before the GHB had been tested. So it is that you come just over a year after the first offences and about two months after the second to be sentenced by this court.

15 You are now 26 years old, a cherished son who was brought up, I am told, in material comfort, a talented soccer player who had embarked upon a career as a professional footballer but whose promise and opportunities have been squandered by abuse of ice and other drugs. You have, as Mr Dane described it, a poor prior criminal history, beginning in 2008. Your history includes driving offences, dishonesty offences, weapons offences including one previous conviction for being a prohibited person in possession of a firearm, that being an unregistered firearm, and drug offences, a previous conviction for trafficking as well as for possession.

16 Your previous criminal history demonstrates in my view not only a history of drug use and abuse but also a history of doing what you like when you like, without regard for other people's rights and interests. You have been dealt with for breaching both a community based order and a suspended sentence and you have already served a custodial sentence.

17 It is clear that you have not been able to demonstrate to date a sustained commitment to abiding by court orders or remaining drug free. Mr Dane described you as a son god, revered in the home but unable, it appears, to accept authority or responsibility. Your mother has suffered serious mental illness for most of your life. Your father separated from her when you finished your schooling and has since repartnered. Your view of your childhood, as recounted to Mr Cummins in January this year, was that it was significantly marred by your mother's mental illness and your view of your early adulthood, again as recounted to Mr Cummins, was that it was significantly marred by the parental separation and your poor relationship with your father's new partner.

18 It was this history that led Mr Cummins, when he assessed you earlier this year, to diagnose you with a chronic adjustment disorder. In his report, he said:

19 In Mr Cummins' opinion, your adjustment disorder at times compromised your judgment, perception and problem-solving ability. He is of the opinion that you were self-medicating to stabilise your mood and he considers that your moral culpability is reduced as a result of your mental health problems; that is, as I understand it, by the adjustment disorder.

20 Mr Jackson Oppy, the general manager of the Raymond Hader Clinic, was of the opinion that you satisfied the DSM-IV criteria for substance abuse disorder. He approached the matter from a different perspective from that employed by Mr Cummins. From his perspective, you are a drug addict, that is, a person with uncontrollable drug use and, from Mr Oppy's perspective, addiction cannot be properly addressed until the addict acknowledges drugs are the cause of his problem, not that other problems cause his drug use.

21 Mr Oppy gave evidence that you were an exemplary participant in the three-month residential course at the Raymond Hader Clinic, demonstrating from the outset an acceptance that drugs were the cause of your problems, not your problems the cause of your drug use. Your understanding of that and acknowledgment of it almost from the outset of your reception into the course at the Raymond Hader Clinic led Mr Oppy initially to doubt your genuineness. Unlike many people entering treatment following a history of drug abuse, he said it was remarkable to see how you accepted responsibility from the start of your drug use and did not seek to blame other people or circumstances. He kept a careful eye on you and became, after critical assessment, satisfied that you were indeed genuine, that your insight was genuine and that you were not just, as he put it, talking the talk. Given his background, his circumstances and his history of involvement with the Raymond Hader Clinic, I put significant weight on his opinion.

22 When taken to the account that you had given Mr Cummins in January this year, that is, after your time at the Raymond Hader Clinic, Mr Oppy said that it was not uncommon when a user or addict relapsed to return to blaming external factors. This, he said, simply demonstrated the extent of the relapse and the need to re-engage with treatment in order again to embark upon the path to rehabilitation.

23 What is clear is that despite the exemplary engagement with treatment during the 90-day residential program and what appeared to be your excellent initial engagement with a less restrictive but still intensive follow-up program you were engaged in after that, it was not that long after you were released from the intensive program that you relapsed and were found in the circumstances giving rise to the second Indictment.

24 As Mr Dane acknowledged, yours is a case of trafficking by an addict. You come to be sentenced not for being an ice user or abuser, that is, not for your addiction, but as a person who had engaged, not for the first time, in trafficking. This time the quantity of ice, the subject of Charge 1, is a commercial quantity and as Mr Pickering pointed out, close to the threshold which would have placed it in the even higher category, that of large commercial quantity.

25 So far as the charges the subject of the first Indictment are concerned, I propose to treat all of them as part of a single enterprise and to make the sentences on Charges 2 and 3 wholly concurrent with the sentence on Charge 1. That seems to me to be consistent with the evidence and with the characterisation of trafficking by an addict.

26 So far as the second Indictment is concerned, this again is the second time that you have been found guilty of possession of a firearm when a prohibited person. When I say this, again by that I mean you are also sentenced for trafficking for the second time. Mr Dane told me that his instructions were that you had possession of the firearm and had taken GHB because you intended to take your life but you had taken too much GHB and passed out in the car. I am not satisfied on the evidence before me that you had taken GHB on that day intending then to take your life. I am not satisfied that that was the reason why you had the firearm. The evidence before me does not permit me to make any affirmative finding about your reason for being in possession of the firearm. Mr Dane told me on specific inquiry that he had nothing to put to me or no instructions to put anything to me about how you came to be in possession of the firearm or the circumstances in which you did.

27 Nothing was put to me either in respect of the circumstances in which you came into possession of the laser pointer. You told, as I understand your explanation, that you had it for self-protection because of the concerns you had about the drug milieu or people with whom you had previously been involved.

28 What is clear is that you had access to such weapons, the firearm and the laser pointer, and that you were prepared to have them on you on that day. Mr Dane acknowledged that I should sentence you, so far as the firearm charge is concerned, on the objective evidence of possession of the firearm. In my view, whether or not you intended to take your life on the day of your second arrest and had the gun on you at that time for that purpose is really not to the point. So far as sentencing is concerned, the evidence reveals that you had access to and were prepared to take possession of a firearm, knowing that you were a prohibited person. It is that which in my view is the most relevant consideration in assessing the gravity of the offending. There is no evidence, however, that I can or do take into account to indicate that you had it for any other purpose.

29 It is clear therefore that the sentences to be imposed upon you must reflect deterrence, both general and specific, as well as denunciation and just punishment. The evidence about your addiction is relevant to your prospects for rehabilitation. It is not, as Mr Dane's plea acknowledged, a mitigating factor when assessing your moral culpability.

30 Mr Cummins' opinion that you had a dysfunctional upbringing and as a result suffered chronic adjustment disorder was of course dependent upon your subjective and unsupported account. I am not satisfied, particularly having regard to Mr Oppy's evidence and the matters put to me by Mr Dane about your upbringing, that it was dysfunctional or as dysfunctional as you made out to Mr Cummins and therefore I am not satisfied that you developed a chronic adjustment disorder as a result of it.

31 I accept that you may have been vulnerable to drug use but I do not accept on the evidence before me that you were self-medicating or psychologically vulnerable to drug abuse by reason of a chronic adjustment disorder. I do not therefore accept that your moral culpability for the offending is reduced.

32 I accept and take into account Mr Cummins' assessment that you do not have any personality disorder and, in particular, that you do not have an antisocial personality disorder or an antisocial personality style or bipolar mood disorder, a major depressive disorder or a generalised anxiety disorder. All of those matters I take into account as positive factors in assessing your prospects for rehabilitation.

33 Despite the five-year history of ice abuse of which I have been told and the extent of regression you seem to have gone through since your involuntary departure from treatment with the Raymond Hader Clinic (involuntary by reason of your second arrest and detention) by blaming the external factors that you identified to Mr Cummins in January of this year following your relapse, Mr Oppy remains optimistic about your prospects for rehabilitation. So does Mr Cummins. I consider them to be reasonable.

34 As the materials presented by Mr Dane and the evidence of Mr Oppy and Mr Cummins revealed, any addiction is hard to overcome and addiction to ice is particularly hard to overcome. That is so, given the likely long-term effects on the brain of sustained abuse of ice.

35 However, you have demonstrated that with support, you can recover and sustain recovery for some time. You are fortunate to have that to give you confidence to face a future of rehabilitation and you are also fortunate to have family support. That too counts in your favour. It is also to be hoped that at the age of 26, you are starting to mature and that greater maturity will also assist you to sustain your efforts of rehabilitation. Certainly since your return to prison on your most recent remand, you have shown yourself again determined to work to improve yourself. You have done as many courses as are available to you as a remand prisoner and you have risen already to a position of responsibility as a billet. Given your past history as an athlete, it is of some note that you are now a billet with responsibility for recreation. It is to be hoped that being given that responsibility and seeing so many other people in prison so much less fortunately circumstanced than you, may also be of positive benefit to you in appreciating the advantages you do have and in assisting you to be able to maintain a more sustained rehabilitation whilst in custody and upon your release.

36 I take all of those matters into account therefore in my assessment of your prospects for rehabilitation and in the significant gap that I have imposed or set between the head sentence and the nonparole period.

37 No sentence other than one of imprisonment immediately served is appropriate, and that was acknowledged, rightly, by Mr Dane. Your early pleas of guilty, your relative youth and these factors that I have identified, the external supports that are available to you should you choose to take advantage of them to assist in encouraging your rehabilitation, all apply to reduce both the head sentence and the nonparole period which I would have considered otherwise appropriate.

39 Yiannis Basdekis, on the charges to which you have pleaded guilty on both the first and second Indictments, you are convicted.

40 On Indictment 1 on Charge 1, you are sentenced to be imprisoned for a period of four years; on Charge 2, you are sentenced to be imprisoned for a period of 18 months, and on Charge 3, to be imprisoned for a period of three months. That makes a total effective sentence on that Indictment of four years' imprisonment.

41 On Indictment 2 on Charge 1, the possession of the firearm, you are sentenced to be imprisoned for a period of two years. On Charge 2, you are sentenced to be imprisoned for a period of three months and on the uplifted summary charge, you are sentenced to be imprisoned for a period of six months. I direct that three months of that sentence, the possession of the laser pointer, be served cumulatively upon the sentence on Charge 1 on that Indictment. That makes a total effective sentence on Indictment 2 of two years and three months.

42 I direct that 12 months of the sentence on Indictment 2 be served cumulatively upon the sentence in Indictment 1. That makes a total effective sentence on the two indictments of five years.

43 I fix a nonparole period of two years and six months as the time you must serve before being eligible for parole.

44 I declare that you have spent 210 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.

45 Pursuant to s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty, I would have sentenced you to a total effective sentence on the two Indictments of seven years and six months and I would have fixed a nonparole period of five years.

46 I make all of the ancillary orders that have been requested and note that they are orders that are to be made by consent.

47 HER HONOUR: I have to actually sign them here on the Bench. I haven't done that yet. If you wish to speak to your client while I am doing that, Mr Dane, you may do so.

49 HER HONOUR: I gather there are family members of Mr Basdekis, including his father, who was in transit - - -

51 HER HONOUR: I will allow his father to go and speak to him too while he is there. He can't touch but they can speak. But I have to stay on the Bench if I allow family members to speak, so I will allow that to occur now also while I am signing the orders.

54 MR DANE: Thank you. It's not the Magistrates' Court, Your Honour, it is the Supreme Court.

57 MR PICKERING: As I am due in the Magistrates' Court at 10.00, Your Honour, I might have to ask for leave in a couple of minutes, but not yet.

58 HER HONOUR: I'll be there in a moment but I've just got to warn Mr Basdekis about the 464 order.

60 HER HONOUR: If you could just remain standing for a moment more, Mr Basdekis.

61 I have made an order under s.46 of the Crimes Act 1958 (Vic) directing that you undergo a forensic procedure, that is, the taking of a scraping from your mouth for the DNA database. I must warn you that if you do not consent to the taking of that sample, then the police are authorised to use reasonable force to take that sample and it is at least likely that they will use the more invasive form of obtaining a forensic sample, namely, taking a blood sample. Do you understand that?

63 HER HONOUR: The other orders that I have made are a forfeiture order in respect of the items listed in the schedule, a disposal order in respect of the items listed in the schedule - that is in respect of Indictment 1 - a further disposal order in respect of the firearm, and a further forfeiture order in respect of the items the subject of this second Indictment.

64 I direct that the summary charges numbered 4, 5, 6, 9 and 10 that were uplifted in respect of Indictment 1 be returned to the Magistrates' Court and they will be listed for mention in the Magistrates' Court at Melbourne on 7 March 2014 at 9.30 am.

66 HER HONOUR: Mr Basdekis, I have just made that order after I have excused Mr Dane. It is important that you communicate with your lawyers. Those remaining summary charges now go back to the Magistrates' Court. There will be a gaol order that will bring you back to court for that date but the responsibility is on you to be in touch with your lawyers before that date so that you can be prepared for that mention date and in a position to work out where to go from there.

67 MR PICKERING: Your Honour, I will undertake to email Mr Dane about that as well.

68 HER HONOUR: Thanks, Mr Pickering, I'd be very grateful. Thank you. Could you remove Mr Basdekis, please.

County Court of Victoria

DPP v Basdekis [2014] VCC 104 (7 February 2014)