IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT Melbourne
criminal DIVISION

Case No. CR-21-00339

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
SINISA GAVRIC		

---

JUDGE:	Her Honour Judge Hampel	
WHERE HELD:	Melbourne	
DATE OF HEARING:	9 June 2022	
DATE OF SENTENCE:	9 June 2022	
CASE MAY BE CITED AS:	DPP v Gavric	
MEDIUM NEUTRAL CITATION:	[2022] VCC 896		

REASONS FOR SENTENCE
---
Subject:				CRIMINAL LAW
Catchwords: 	Sentence – Trafficking in a drug of dependence (methamphetamine) – Possession of a drug of dependence (Xanax and diazepam) – Guilty plea after co-accused’s sentence indication – additional weight given to guilty plea given backlog in criminal justice system – Absence of evidence of remorse is absence of mitigating feature – Difficult childhood upbringing – proportionality with co-offender’s sentence 
Cases cited:				DPP v Ho [2022] VCC 211
Legislation cited:			Sentencing Act 1991 (Vic)
Sentence:	22 months’ imprisonment (708 days of pre-sentence detention reckoned as served)
---
APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr P. Kounnas	Office of Public Prosecutions	
			
For the Offender	Mr J. Murphy	Matthew White & Associates	

HER HONOUR:

1	Sinisa Gavric, you have pleaded guilty to one charge of trafficking in methamphetamine on the basis of single day possession but for the purposes of sale; two charges of possession of a drug of dependence, Xanax and diazepam in relatively small quantities - for the Xanax, 37 tablets, and for the diazepam, two; and two related summary offences, one of dealing with the proceeds of crime, just over $2,000 in cash, and one of failing to comply with a direction to assist in relation to giving the PIN in order to open a mobile phone that was found in your possession.  
2	I adopt and rely on the circumstances of trafficking, not only from the prosecution summary that was read to me this afternoon, but also from what I said when I sentenced your co-offender, Sharon Ho.
3	In summary, on 1 July 2020, police executed a search warrant at your house in Point Cook. You co-accused, Ms Ho was living with you there at the time. Amongst other things, police found in your bedroom, in 3 separate Ziploc bags, a total of 74.5 grams of mixed methylamphetamine. It had a purity of between 78 and 88 per cent, making the quantity of pure methylamphetamine 64 grams. Police also found $2,500 in cash, a significant amount. On Ms Ho’s phone, there were text messages indicative of trafficking – that is, of fielding requests for and responding to requests for the supply of methylamphetamine to what would appear to be end users.
4	Consistent with my reasons handed down in the sentencing of Ms Ho, I note that the quantity of methamphetamine seized was well above the threshold for a commercial quantity. That is, the quantity was a total of 74.5 grams which was mixed in three separate zip lock bags with a purity of between 78 and 88 per cent, such that the quantity of pure methamphetamine was 64 grams, while a traffickable quantity of methamphetamine is three grams, and  a commercial quantity is 50 grams pure or 250 grams mixed. 
5	However, I also take your guilty plea, as I took Mr Ho’s guilty plea, as one acknowledging that you were engaged in a business of trafficking, but that you did not intend to traffick in a commercial quantity. I acknowledge that in order for a conviction for trafficking in a commercial quantity of methamphetamine to be properly based, it requires not only possession for the purposes of trafficking of an amount in excess of the commercial quantity or actual evidence of trafficking in an amount over a commercial quantity, but also an intention to traffick in that commercial quantity.  
6	However, while I am to sentence you on a charge trafficking in a non-commercial quantity, the quantity involved remains relevant to the assessment of the seriousness of the offending.  The quantity that was found in your possession is still a significant amount.  The offence of trafficking in a non-commercial quantity is nonetheless a serious one.  It carries a maximum term of imprisonment of 15 years.  
7	The Xanax tablets and the diazepam were also found when the police executed the search warrant and the maximum penalty for possession of those drugs is 12 months' imprisonment if I am satisfied on the balance of probabilities that the offending was not for a trafficking purpose, or in any other case, five years' imprisonment.  Now, on the material before me, I am not satisfied affirmatively that the possession was for a purpose of trafficking, but I must say, I am also not satisfied that the purpose was not for that.  So I am sentencing you on the lower basis but not because I have made a positive finding in your favour, but rather because the evidence does not allow me to either be satisfied on the balance of probabilities that it was for a purpose not related to trafficking, or satisfied beyond reasonable doubt that it was for a purpose related to trafficking.  So in those circumstances I have taken as the appropriate penalty range the 12 months' imprisonment.  
8	The possession of suspected proceeds of crime, the $2,050 in cash found when the warrant was executed, was relied on as a background fact or circumstance in your co-offender Ms Ho’s case. So whilst you were charged with that offence, have pleaded to it here, and it is appropriate to impose a sentence for it, I do not consider that it is appropriate to impose any cumulation upon the sentence for the trafficking.  
9	However, the circumstances of the failure to comply with a direction to assist, namely your failure to provide police with the details that would enable them to unlock the mobile phone that was found when the warrant was executed, and which despite your denials, was clearly linked to you, I consider to be a separate aspect of criminality and consider that part of the sentence in respect of that should be cumulative upon the sentence for the trafficking.  So that is the basis on which I will deal with the circumstances of each of the separate offences and the approach I am going to take to the overall sentencing.  
10	Like your co-offender, Ms Ho, your pleas of guilty to these charge were entered well after you had been charged and committed for trial.  Ms Ho was the first to plead guilty following a sentence indication that had occurred before me and followed a contested pre-trial hearing at which both you and she argued for the exclusion of certain evidence.  It was following that unsuccessful application for exclusion of evidence that it would appear serious negotiations took place.  I am also told on the materials filed today that the prosecution had offered to accept a plea to non-commercial quantity trafficking in November but it was only after Ms Ho's sentence indication application resolved her charges in February that you ultimately entered your plea of guilty.  
11	Now, it is not an early plea and it was likely motivated by a level of pragmatism, maybe even a bit of ‘wait and see’, but you are nonetheless entitled to a reduction for that guilty plea and I must take into account, consistently with what was in Mr Murphy's submissions, the clear difficulties in communicating with people in custody during COVID times, which may have had some effect on the late stage at which you ultimately offered your guilty pleas.  Nonetheless, you did plead guilty.  I take into account therefore the general requirement to reduce the sentence otherwise appropriate for a guilty plea in order to acknowledge its utilitarian benefits in advancing the interests of justice.  
12	Your guilty plea must carry additional weight because of its benefits to the criminal justice system facing an unacceptably long backlog by reason of an almost two year delay in being able to conduct jury trials as a result of the pandemic. The authorities make it very clear that that must be reflected in a reduced sentence and I do so.  I also take into account, although I have said it is a relatively late plea and it may have been motivated by a level of pragmatism, that you were originally charged with commercial quantity trafficking and it was only when the Crown opened up discussions in relation to its preparedness to accept a non-commercial quantity trafficking that that was the charge that was ultimately proceed with.  
13	Although I say it was a late plea, you are not to be disadvantaged because of that. It was a late plea to what was in effect a new offer, and an offer to plead to trafficking in a commercial quantity is a very different position to an offer to plead to trafficking in a non-commercial quantity, which seems to have only been on the table since November of last year. 
14	And, while there is no material before me to suggest that the plea of guilty is evidence in itself of remorse and there is no other real evidence of your guilty plea being motivated by remorse, That does not aggravate the offending, nor operate to increase your sentence. All it means is that there is here absent one feature – that is, remorse – which, if present, can enhance prospects of rehabilitation.  So, you are not disadvantaged by it but I am just making clear I am not treating the plea of itself as evidence of remorse. 
15	You have a significant criminal history going all the way back to 2009, when you were just old enough to be dealt with before an adult court.  Your previous convictions include convictions for trafficking in methylamphetamine in 2018, trafficking in heroin in 2017 and trafficking in cannabis back in 2011.  In respect of two of them, you were initially sentenced to a Community Correction or a Community Based Order.  
16	In relation to the most recent one in 2018, you breached that and were ultimately sentenced to a period of 60 days' imprisonment which was time served for that and other offences that were also dealt with.  You also have a significant number of convictions for possession and use of various drugs spanning all the way back to about 2011.  Your criminal history also has a disturbing number of charges for possession of firearms or other weapons, being a prohibited person in possession of a firearm, quite a number of violence offences or threat to cause violence offences, affray, criminal damage and many serious driving offences and breach of bail conditions.  
17	On your first appearance before an adult court in 2009, you were sentenced to a period of nine months in youth detention.  Since then you have received multiple Community Correction Orders or Community Based Orders as they were back in 2010 and 11, many of which were breached by you. It is clear, looking at your criminal history and reviewing your personal history as detailed by Mr Murphy, that much of your criminal history is linked to a long history of substance abuse, again dating back to your early adulthood or late teens.  
18	In addition to the number of Community Correction Orders that were imposed on you and the sentence of youth detention as a young offender, you have received a number of terms of imprisonment.  Your sorry criminal history indicates that nothing to date has been effective in deterring you from committing crimes or indeed in giving you the combination of determination and strength to be able to deal with what is clearly an underlying cause of a lot of your offending, namely, substance abuse.  However, you have been in custody for two years on this occasion, or just under two years.  You are getting to a mature age.  You are around about 30 now.  If those two things – being able to have the opportunity to stay clean for two years, and to see what a two year stretch of imprisonment is like – have not helped you to steer your future away from an increasing cycle of offending, custody, back into the community, offending, back into custody, it is difficult to see what else can deter you.  
19	 However, it is clear that specific deterrence as well as general deterrence, denunciation and just punishment needs to be given weight in the sentencing mix.  As I said when I was sentencing Ms Ho, trafficking in prohibited substances is a serious offence. Trafficking is a terrible thing. Assisting people to use illicit drugs causes untold misery and profiting out of it is absolutely amoral.  It is no mitigator if you sell only to people you know or to friends or even if you think or delude yourself into thinking that all you are doing is covering the cost of your own use. But here as I understand it, you like Ms Ho actually acknowledge that you were doing more than that, you were trafficking for profit, that is, to support your lifestyle.  To do that means all you are doing is exploiting the misery of other people, users and the victims of their use, their long-suffering families, the victims of the crimes they commit to feed their habit, and the overall community cost of the squandered lives of people who give their lives over to drug abuse.  It is for those reasons that denunciation, deterrence and just punishment have such weight in sentencing for an offence of trafficking.  
20	You are fortunate to have the continued support of your mother and brother. Many people who come before the court do not have those benefits.  Their parents, their siblings, have long given up hope they will change, or they have become alienated from them. You are lucky to have the continued loving support of a mother and a brother who have been here throughout the proceedings and are here for your sentencing today.  Your upbringing was obviously somewhat difficult. I am told that your father was a functioning alcoholic prone to bouts of terrible violence visited upon you and other family members.  That is a traumatic experience for anybody growing up and I accept that that probably had some significant connection to your leaving school early, your erratic engagement with employment and your resort when still quite young to substance abuse.  
21	You came to Australia when you were nine. As a child growing up during civil war in the former Yugoslavia, and as an ethnic Serb, your family probably experienced considerable difficulty in their home country before they came here.  Resettlement for any family in another country and with a different language is difficult enough.  Coming from a traumatic and violent background makes it even harder.  Most of your parents' families remained in parts of the former Yugoslavia so there was not much extended family connection and support which also makes it difficult to become connected and to overcome the difficulties of a disrupted upbringing.  
22	Unfortunately for you, you turned very early to substance abuse.  That interfered with your ability to hold down employment and to see living a prosocial life as meaningful and enjoyable.  Now that you are in your 30s, you are at a time when you can and must take responsibility for yourself, your own behaviour and your own decisions. Hopefully the time you have recently spent in custody has been enough to give you a decent start to recalibrate and start afresh.  But I take that childhood disadvantage and deprivation and the connection between that and early resort to substance abuse into account.  
23	You are not someone who, being advantaged and successful, turns in their 20s or 30s to substance abuse when it is a much more conscious and more mature decision, so I take that into account.  Your relationship with your father was obviously complex despite your understandable dismay and distress at his alcoholism and violence.  You were in custody when he died and your response to that has obviously been complex - a combination of grief and guilt and something you are still working to process.  Hopefully you will be able to do that by assistance with counselling rather than resort to substance use upon your release. Dealing with the emotional upheaval of difficulties in your youth as well as the entrenched habits of drug use are clearly going to be essential if you are going to be able to stay out of trouble and keep out of gaol.  
24	I have mentioned already your supportive mother and younger brother.  The testimonials they wrote are touching, clearly heartfelt.  Their love for you, their support of you despite your difficulties is palpable and it is hoped that their support will enable you to have the strength to be able to reward that with a substance free and hardworking life upon your release.  It counts in your favour that you have stable housing, an offer of employment as well as good family role models, and love. Hopefully that will mean the cycle of aimlessness,  substance abuse,no real employment and associating with others involved in the same sort of aimless life will change.  
25	It is for those reasons and the obvious hardships of the whole time that you have been in custody being under COVID restrictions that have led me to the view that the sentence to be imposed should be one that does not require you to spend any further time in custody than you already have.  Had this been pre-COVID, I would have imposed a longer sentence even if you had pleaded guilty, but for the reasons that the authorities have made very clear and that I consider are entirely appropriate, the sentence has to be reduced to reflect that additional hardship of custody.
26	The sentence also has to have some proportionality to that imposed on your co-offender.  Her circumstances were very different.  Her childhood and upbringing were much more traumatic and at a very young age she was exposed to the sort of trauma that one would hope no young person would ever be, at a time she was without the benefits of parental support.  Her life after that had obviously been difficult.  She obtained bail and managed to stay out of trouble whilst on bail, and has a young child for whom she was responsible but from whom she had been separated by reason of COVID and as a result of going into custody.  So the hardships she suffered were very different.  Her criminal history was also much less than yours.  
27	So there is no direct comparison but there must be a proportionality and for the reasons that I was discussing with your counsel, release on a 
Community Correction Order after you have done close to two years' imprisonment would not be proportionate.  So I have fixed on a straight sentence, that is one without a non-parole period because of the effluxion of time and because of the need to have a level of proportionality, having regard to the matters I have identified.  
28	Could you now please stand, Mr Gavric. On the charges to which you have pleaded guilty, you are convicted.  On Charge 1 of trafficking, you are sentenced to be imprisoned for a period of 21 months.  On Charge 2 of possession of Xanax, you are sentenced to be imprisoned for a period of two months. On Charge 3 of possession of diazepam, you are sentenced to be imprisoned for a period of one month.  On the related summary offence of possession of proceeds of crime, you are sentenced to be imprisoned for a period of three months.  And on the related summary offence of failing to comply with a direction in respect of the mobile phone, you are sentenced to be imprisoned for a period of three months.  
29	I direct that one month of that sentence be served cumulatively upon the sentence on Charge 1.  That makes a total effective sentence of 22 months.  I do not fix a non-parole period for the reasons that I have expressed due to the length of time you have spent on remand and the circumstances in which you have spent them. 
30	I declare that you have spent 708 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.  I declare pursuant to s6AAA of the Sentencing Act that, but for your pleas of guilty, I would have sentenced you to a total effective sentence of four years' imprisonment and I would have fixed a period of two years as the time that you would have had to have served before being eligible for parole.  I make the forfeiture and disposal orders sought.  
31	Are there any further orders that are required to be made and have the sentences that I have pronounced what I said I intended to do?  
MR KOUNNAS:  Yes, it seems so, Your Honour.  Nothing further.  
HER HONOUR:  Thank you, Mr Kounnas.  Mr Murphy, you agree with that?  
MR MURPHY:  Nothing from defence.
HER HONOUR:  Well, there is no prospect of you coming back before me in relation to this matter because it is a straight sentence and the effect is you should be released when you get back to custody tonight, but I do hope, Mr Gavric, that you do not darken the door of this court or of the Magistrates Court again – that you can, say, pretend you are 20 again and start afresh rather than think that you have got to continue to do the sort of things you have done throughout your 20s.  And I hope you can say a big thank you to that mother and brother of yours for the support that they are prepared to give you. That is your best prospect and so much better a prospect than so many other people who come before this court have for being able to have a much happier and more meaningful life from now on.  
OFFENDER: Thank you, Your Honour.  
HER HONOUR:  Can you please now remove Mr Gavric.  Mr Murphy, you will be able to come downstairs and see your client - I know those reasons were fairly rough but I just thought it was important to try and deal with him today.  He has had a long, long time in custody.  Thank you, Mr Kounnas and Mr Murphy, for your considerable assistance during the last trial and on the plea this afternoon.  We will now adjourn.  
- - -