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DPP v Koutsogiannakis [2018] VCC 471 (13 April 2018)

Last Updated: 21 November 2018

IN THE COUNTY COURT OF VICTORIA
Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 16-00698

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN KOUTSOGIANNAKIS

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JUDGE:
HIS HONOUR JUDGE LACAVA
WHERE HELD:
Melbourne
DATE OF HEARING:
19 March 2018
DATE OF SENTENCE:
13 April 2018
CASE MAY BE CITED AS:
DPP v KOUTSOGIANNAKIS
MEDIUM NEUTRAL CITATION:

REASONS FOR SENTENCE

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Subject: Trafficking in a drug of dependence, possession, firearm.

Sentence: 4 years imprisonment/2 years 8 months non parole

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APPEARANCES:
Counsel
Solicitors
For the Director of Public Prosecutions
Ms S. Thomas

For the Accused
Mr R. Van de Wiel QC

HIS HONOUR:

  1. John Koutsogiannakis, you have pleaded guilty to six charges contained in indictment F13758295.1. You have also pleaded guilty to four related summary charges and you consented to those matters being dealt with by me in this court.
  2. The charges on the indictment are as follows:
  3. The summary charges were as follows:
  4. The circumstances of your offending are contained in a prosecution summary dated 15th December 2017. The summary was read in open court by the prosecutor Ms Thomas, and your counsel Mr Van De Wiel QC agreed that the summary was accurate and forms a proper basis from which I can sentence you. It is not necessary that I here set out in detail that which is explained in full by the summary and I will do so only in an abbreviated way. These sentencing remarks should however be read in conjunction with what is contained in the summary.
  5. At the time that you were arraigned you also admitted a number of prior convictions from 4 previous court appearances between 2008 (aged 40) and 2015 (aged 47). Some of those prior convictions are relevant in considering the sentence for this offending.
  6. Most relevant is the appearance on the 24th March 2015 in the Dandenong Magistrates’ Court where you were convicted and released on a Community Corrections Order for a period of 12 months on various charges including for possession of drugs, assisting in the retention of stolen goods and dealing with property suspected of being the proceeds of crime as well as firearms offences. The Community Corrections Order was subject to conditions designed to assist you to rehabilitate yourself. However, you committed these offences for which I must sentence you whilst you were subject to that Community Corrections Order. This offending represents a considerable step up in your level of offending.
  7. On the 9th November 2015 police executed a search warrant at premises occupied by you and your two children at Endeavour Hills.
  8. A search of your premises located a total of 180.7 grams of methylamphetamine with purities ranging from 53 to 87 per cent. The total quantity of pure methylamphetamine was approximately 152 grams. A commercial quantity of this drug is 100 grams. A traffickable quantity is 0.5 of a gram. Charge 1 proceeds on the basis that you possessed this drug for sale.
  9. The methylamphetamine was located in a number of zip lock bags found in a safe in your bedroom (some in a box) together with other objects often associated with drug trafficking. These included two sets of scales, a quantity of zip lock bags, six new mobile phones (there were also two mobile phones located in the bedroom) and a notebook with numbers and figures inside.
  10. Inside the master bedroom en-suite police located a plastic container that contained remnants of methylamphetamine, the contents of which had been flushed down the toilet immediately before police entered the premises.
  11. Also found was 211 grams of 1,4-butanediol the purity of which was not determined. A traffickable quantity of this drug is 50 grams. I will sentence you on charge 2 on the basis that you did not possess this drug for trafficking so that the lower maximum penalty will apply.
  12. Other items were found in the house consistent with you having trafficked methylamphetamine including zip lock bags containing methylamphetamine, and two sets of scales, a notebook with numbers and figures inside, a quantity of zip lock deal bags, a lockable black box containing various items and six new mobile phones.
  13. Police also found a total of $392,119.45 in cash in a safe in your wardrobe. There were three different lots of cash in this safe. $2650 was found in one lot, $1214.45 was another made up of coins, and a black and orange bag that contained a currency counter and $388,255 in cash. In a second safe located in the garage of the house $8080 cash was found. The total sum of cash found in the premises was $400,199.45 (summary charge 6). It is not alleged this cash was the proceeds of your drug trafficking activities. Rather, the summary charge proceeds on the basis you possessed the cash reasonably suspected of being proceeds of crime.
  14. A number of other items were located within the safe including two swords (summary charge 12) and some of the various items listed in summary charge 16.
  15. In relation to the firearms offences police found a loaded Browning 12 gauge sawn off shotgun (charge 3), a loaded silver Webley Patents Mark 1 revolver (charge 4), one loaded Bruni Model P4 handgun (charge 5), various types of ammunition (summary charge 11). At all times relevant you were a prohibited person under the Firearms Act and you were not authorised to possess any firearms or ammunition. The firearms were not stored safely or securely.
  16. Mr Van De Wiel told me that the shot in the shotgun cartridges had been removed and replaced with salt and the other ammunition was blank. This was not disputed by the prosecutor, and is supported by evidence in the hand-up brief.
  17. Police also found a Kawasaki motor cycle and a key belonging to it (charge 6). This motor cycle was stolen in January of 2015.
  18. This is serious offending. The quantity of methylamphetamine found in your possession for trafficking was significant. It is 50 per cent above the commercial quantity threshold. In submissions I understood Mr Van De Wiel to concede the quantity of Ice in your possession was not inconsiderable. Whilst I accept that you were at the time of offending a user of this drug and that some of the drug in your possession may have been for self-use, it is clear to me that the bulk of the drug methylamphetamine found in your possession was for the purpose of trafficking to others. Whilst the charge is confined to trafficking on one single day, in my view your offending falls at about mid-range for this kind of offence, and above street level trafficking. Your offending is a serious example of what is a serious offence. Unfortunately offending of this kind is prevalent, and the sentence I impose must properly apply the principle of general deterrence.
  19. The quantity of 1,4-butanediol found in your possession was four times a traffickable quantity threshold. In my view this charge should be viewed as in effect part of the first charge of trafficking. The sentence I impose on this charge will therefore be served concurrently with the sentence I impose on charge 1.
  20. The firearms charges are also very serious. Whilst I accept the weapons were loaded with ammunition where the shot and gun powder was replaced with salt, you nevertheless possessed the weapons and the fact they were loaded suggests an intent to use them. I was told you purchased the guns after a so called “run through” at your home in October 2015 during which you were injured as a misguided self defence mechanism. That suggests an intent to use the guns if necessary and does not excuse your offending.
  21. You have prior convictions for firearms offences and whilst I accept that your counsel told me that you have grown up with guns, that is not an excuse that should in anyway mitigate the sentence on these charges. A sawn off 12 gauge double barrel shotgun is a significant weapon as is a .455 revolver. Again, offending of this kind in charges 3 and 4 is more and more prevalent, particularly amongst offenders associated in some way with drugs. Accordingly the sentence I impose and charges 3 and 4 must properly apply the principle of general deterrence. Summary charges 11 and 12 are also weapons related. In my view the sentence imposed on charge 12 should be served concurrently with sentences imposed on other charges. On charge 11 I will impose a fine.
  22. Your offending in charge 6 is self-evidently also serious. The amount of money found in your possession must put your offending towards the upper end for this kind of offence. People need to be deterred from possessing cash and objects suspected of being the proceeds of crime. Accordingly the sentence I impose on summary charge 6 must properly apply the principle of general deterrence.
  23. You were arrested at the house on the 9th of November 2015 and exercised your right not to answer questions. You were remanded in custody and bailed on the 17th February 2016. The matter was committed to this court on a straight hand-up brief on 24 April 2016 and you were arraigned and pleaded guilty to the charges on 13th February 2017. On the 2nd of June 2017 the plea was adjourned at your request. A further adjournment at your request on the 12th October 2017 saw the matter further adjourned and your plea proceeded before me on the 19th March 2018.
  24. You have pleaded guilty to the charges and that is to your credit. By your pleas of guilty you have saved the time, and costs of a trial. By your pleas of guilty you have thus facilitated the course of justice. I treat you as having indicated that you would plead guilty at an early time. Further, I treat your pleas of guilty as evidence of your remorse for your offending and I note you have expressed your remorse to family members and people who have written references for you and to Mr Watson-Munro and others who have furnished reports.
  25. I turn to some matters related to your background and personal circumstances.
  26. Mr Van De Wiel came into this matter late and there had previously been other counsel acting on your behalf. Mr S Tovey of counsel had previously held the brief to appear for you and he filed with the court a nine (9) page outline of submissions on your behalf which I marked as exhibit 1 on the plea and Mr Van De Wiel relied upon this outline.
  27. You are now 50 years of age and you were 47 at the time of offending. I was told and accept that your life changed for the worse around 2015 when you started using and became addicted to illicit drugs. You had been in trouble with the law on a few occasions before 2015 but the kind of offending that you have engaged in was not of the kind or level that is evident in the offences you now face. Certainly for at least the first 40 years of your life you had led an unblemished life so far as the law is concerned.
  28. After 2015 it was submitted and I accept that your life was unrecognisable from what it had previously been. Your relationship with your parents is said to have deteriorated, you were separated from your children and you were heavily addicted to drugs, namely Ice.
  29. Upon your arrest and remand in custody you resolved to change your ways. You made contact with Mr Watson-Munro, who gave evidence on your behalf and you were eventually bailed to Innisfree, a residential drug and alcohol rehabilitation centre. It was submitted and I accept that as a result of receiving treatment for your drug addiction all aspects of your life have improved.
  30. Your sister Ms Loumanis gave evidence to support this submission and she also gave a reference for you in writing. She told me you moved into drugs after you and your wife separated. She said you disconnected from the family but you have changed after you engaged in rehabilitation. She said she believes you are now drug free.
  31. Your parents are Greek and it was submitted there was some instability in the family home in the result that you were called upon to act as a de facto parent to your two younger siblings.
  32. You completed year 12 at school and then moved to a TAFE course in architecture. You then moved into the area of transport logistics commencing as a driver and moving to management level in a number of companies. You have previously been hard working and you are obviously not without considerable ability and for most of your life you have contributed to society and to your family. This is supported by evidence from a number of persons who each gave a written reference on your behalf including Elysia Baldwin a friend of longstanding, your two children, Tracy Tanner and Edith Campbell. In passing sentence I have taken all of this character evidence into account.
  33. You were married in your early 20s and you have two children aged 23 and 25. For most of your life you were a licensed shooter but your licence lapsed in 2011.
  34. In 2007 you started your own trucking business which was very successful but due to circumstances with a major client your business collapsed and it went into liquidation in 2008. Thereafter, you have had work also in transport. Recently you have been working for yourself, buying cars and doing them up and reselling them for profit.
  35. I accept that the breakdown of your marriage appears to have been a changing point in your life. You lost a friendship circle and you began using methylamphetamine (Ice). You had been introduced to this drug by your ex-wife also a user. What began as recreational use soon developed into addiction. This led to the offending which took you to the Dandenong Magistrates’ Court on the 24th March 2015. Your addiction to Ice continued notwithstanding the Community Corrections Order leading to this offending.
  36. I received into evidence as exhibit 3 two letters from Innisfree Health Pty Ltd verifying your attendance over 70 days for in-patient therapy. The letter of 18th March 2016, under the hand of Mike Belstead the director concludes as follows:

“Mr Koutsogiannakis has shown significant evidence of recognising the seriousness of his alleged criminal offence, and has taken positive and responsible steps to address his past behaviours by entering an intensive program with Innisfree that deals with illicit substances and mental health issues, as well as disengaging from his previous acquaintances and lifestyle.

Mr Koutsogiannakis has maintained his abstinence from substances and is committed to continue to be involved in on-going psychotherapy as support. He has also put enormous effort into his recovery and rehabilitation and as such it is my opinion that Mr Koutsogiannakis is ready to leave the Innisfree program.”

  1. I accept that you have taken considerable steps and worked hard to rehabilitate yourself from illicit drugs. You were breached for breaching the Community Corrections Order and the order was confirmed. I have concluded that your prospects for rehabilitation are reasonably good. You have taken all of the right initial steps to rid yourself from drugs. I think you will only likely re-offend in this way if you again succumb to the temptation of Ice use.
  2. Mr Watson-Munro gave evidence and prepared two reports about you dated 10th December 2015 and 1 June 2017 which were both tendered as exhibit 2. In his first report Mr Watson-Munro after testing was of the opinion you suffer from Major Depression with features of an anxiety disorder both of long standing. He thought your first time in custody had aggravated this condition. In addition he noted that you suffer from “a significant Substance Misuse Disorder” and at the time of offending you were using 1.5 grams of Ice a day. He said this would have affected your judgment and impulse control.
  3. In his second report he noted considerable improvement in your mental health after having completed the Innisfree program. In evidence he said that your remain depressed because of the gravity of the circumstances confronting you as a consequence of your offending.
  4. In the written submissions at page 6 the author said that you “do not rely heavily on the principles espoused in Verdins”. At the same time it was conceded all of your actions in this offending were voluntary. There is no basis for any reliance on the first two principles of Verdins here. You offended because you were addicted to Ice. In arriving at an the kind of sentence I should impose I have taken into account that you may suffer from depression and will do so in prison.
  5. Mr Van De Wiel submitted that because you have taken such good steps towards ridding yourself of drugs, I should impose a combination sentence of a term of imprisonment and a Community Corrections Order. This was also the submission in the written outline of previous counsel. Ms Thomas submitted that such a disposition would be inadequate having regard to the level of offending you have engaged in. At the conclusion of the plea I said that I would not have you assessed for suitability for another Community Corrections Order. That was because this offending occurred whilst you were already subject to a Community Corrections Order, and further because in my judgment such a disposition would not achieve the purposes of sentencing relevant here the term of imprisonment being limited to one year by such a disposition.
  6. In cases of this nature the sentence imposed must properly address deterrence (both general and specific) and serve to denounce your offending whilst at the same time impart just punishment having regard to your prospects for rehabilitation. In my judgement only a sentence of a term of imprisonment and the fixing of a non-parole period will fully take into account the purposes of sentencing relevant in all the circumstances of this case.
  7. On charge 1 trafficking in a drug of dependence methylamphetamine you are convicted and sentenced to a term of imprisonment of 3 years.
  8. On charge 2 possession of a drug of dependence 1,4-butanediol you are convicted and sentenced to a term of imprisonment of 3 months.
  9. On charge 3 prohibited person possess a firearm being a Browning 12 gauge shotgun you are convicted and sentenced to a term of imprisonment of 12 months.
  10. On charge 4 prohibited person possess a firearm being a .455 silver Webley Patents Mark 1 Revolver you are convicted and sentenced to a term of imprisonment of 6 months.
  11. On charge 5 prohibited person possess an imitation firearm you are convicted and sentenced to a term of imprisonment of 1 month.
  12. On charge 6 dealing with the proceeds of crime you are convicted and sentenced to a term of imprisonment of 3 months.
  13. On summary charge 6 dealing with property suspected of being the proceeds of crime you are convicted and sentenced to a term of imprisonment of 12 months.
  14. On summary charge 11 possession of cartridge ammunition you are convicted and fined $500.
  15. On summary charge 12 possession of prohibited weapons being two swords you are convicted and sentenced to a term of imprisonment of 1 month.
  16. On summary charge 16 dealing with property suspected of being the proceeds of crime you are convicted and sentenced to a term of imprisonment of 3 months.
  17. The sentence imposed on charge 1 on the indictment is the base sentence.
  18. I direct that 6 months of the sentences imposed on each of charges 3, and summary charge 6, cumulate upon the base sentence making a total effective sentence of four (4) years' imprisonment.
  19. I direct that you serve a minimum term of two years and eight (8) months' imprisonment before being eligible for parole.
  20. I declare there has been 125 days pre-sentence detention of the sentences passed this day and I direct that 125 days be reckoned as having been already served under the sentences passed this day and be entered into the records of the court and be deducted administratively.
  21. For the purposes of section 6AAA of the Act I state I have imposed sentences being terms of imprisonment and I have reduced the overall sentence I would have imposed but for your pleas of guilty. Had it not been for your pleas of guilty to the charges I would have imposed a total effective term of imprisonment of six years and I would have fixed a non-parole period of four years.
  22. I have been asked to sign a disposal order and forfeiture order relating to various items. These applications were not opposed and I have signed the orders.
  23. Mr van De Wiel, is there anything arising out of that?
  24. MR VAN de WIEL: Just in terms of the fine of $500, would Your Honour excuse me for a moment because I think I'll be seeking a stay.
  25. HIS HONOUR: I'll grant a stay of six months.
  26. MR VAN de WIEL: Yes. I'd be grateful for that, Your Honour.
  27. HIS HONOUR: Are there matters arising out of that, Mr Nankin?
  28. MR NANKIN: No, Your Honour.
  29. HIS HONOUR: Very well. Would you take Mr Koutsogiannakis into custody please? Feel free to leave, Mr Van De Wiel, I've got another matter to take care of, thank you.
  30. MR VAN de WIEL: As Your Honour pleases.

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