IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. CR-21-00586

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
MARIO GRECH		

---

JUDGE:	HER HONOUR JUDGE TODD	
WHERE HELD:	Melbourne	
DATE OF HEARING:	6 December 2021 To Plead
25 February & 1 March 2022 For Further Plea	
DATE OF SENTENCE:	1 March 2022	
CASE MAY BE CITED AS:	DPP v Grech	
MEDIUM NEUTRAL CITATION:	[2022] VCC 220		

REASONS FOR SENTENCE
---

Subject:	CRIMINAL LAW
Catchwords: 	Plea of guilty – one charge trafficking in a drug of dependence – one charge theft – one charge possession of a drug of dependence – related summary offences of driving whilst suspended and dealing with property suspected of being the proceeds of crime – delay – Verdins principles– Bugmy principles– circumstances of COVID-19 pandemic
Legislation Cited:	Crimes Act 1958; Drugs, Poisons and Controlled Substance Act 1981; Sentencing Act 1991
Cases Cited:	Bugmy v The Queen [2013] HCA 37; DPP v Govedarica [2018] VCC 1493; DPP v Herrmann [2021] VSCA 160; DPP v Pham [2017] VCC 683; R v Verdins & Ors [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169
Sentence:	Total effective sentence of 2 years and 9 months’ imprisonment with a minimum non-parole period of 1 year and 8 months’ imprisonment. 

---

APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr P. Pickering	Office of Public Prosecutions	
			
For the Accused	Mr V. Andreou	Christopher James Lawyers	

HER HONOUR:

Introduction
Plea of guilty and maximum penalties
1	Mario Grech, you have pleaded guilty to one charge of trafficking in a drug of dependence, an offence which carries a maximum penalty of 15 years' imprisonment; one charge of theft which carries a maximum penalty of 10 years' imprisonment, and one charge of possessing a drug of dependence, which carries a maximum penalty of 1 year imprisonment or 30 penalty units or both. 
2	You have also pleaded guilty to the related summary offence of driving while your licence was suspended, which carries a maximum penalty of 2 years' imprisonment or 240 penalty units, and to dealing with property suspected of being the proceeds of crime (the amount of $2,510.00 in cash), which carries a maximum penalty of 2 years' imprisonment.
Circumstances of offending
3	The circumstances of your offending are set out in the Summary of Prosecution Opening dated 29 July 2021. This document became Exhibit A on the Plea and it forms part of, and it is attached to, these reasons. I will not repeat it but summarise just parts of it here.
4	On 24 June 2020 at about 12.16pm you were seen by police driving a blue 2005 Holden Commodore on the Greensborough Bypass; they followed your car before attempting to stop you.
5	You did not pull over despite police turning on their lights and sirens; they followed you until you stopped in a driveway on Ryans Road in Diamond Creek.
Charge 1: Trafficking in a drug of dependence (Simpliciter)
6	Your car was searched, and police found acetone, an acetone bowl (used for washing impurities from methylamphetamine), a mobile phone and a large plastic bag hidden in a dashboard compartment. This bag held multiple small clip seal bags containing a white crystal substance that was suspected to be methylamphetamine.
7	The contents of the bags found in your car were taken to the police Forensic Services Centre to be analysed. Each of the 8 plastic bags, which contained a further total of 16 plastic bags, were found to have methylamphetamine in varying amounts.
8	In total the bags contained 71.1 grams of pure methylamphetamine. 
9	At the time of your offending, a commercial quantity of pure methylamphetamine was 50.0 grams. Although the amount you had was over that amount, the Crown eventually conceded that it could prove beyond reasonable doubt that you intended to traffick a commercial quantity.
Charge 2: Theft (of motor vehicle)
10	Analysis of the text messages on your mobile revealed that you had a stolen 1972 HQ Holden Coupe in your possession. The car had been stolen from an address in Watsonia sometime between 14 March 2020 and 15 April 2020. One text message showed that you arranged for a tow truck to pick up the car from the Watsonia address and drop it at an address in Mill Park. You had claimed to be its owner.
Charge 3: Possession of a drug of dependence (testosterone)
11	On the day of your arrest police executed a search warrant at your address and they found one vial of testosterone bearing the name of Robin Taylor.
Summary charge 4: Driving while suspended
12	At the time of driving, your licence was suspended. 
Summary Charge 10: Dealing with property suspected of being proceeds of crime ($2,510)
13	After you were arrested you were searched, and police found $2,510 in cash, and a second mobile phone.
Arrest and Interview 
14	You were arrested and taken to the Heidelberg police station. You exercised your right to silence during a record of interview.
15	You later assisted police investigators in the recovery of the stolen Holden from a location in Taylors Lakes.
Chronology
16	You were remanded in custody on 2 July 2020. An early procedural hearing was adjourned to await the results of testing of the drugs that were found. After committal to this court, your case ultimately resolved after negotiations on 27 May 2021, the occasion of your successful bail application in this Court.
17	After your release on bail, you engaged with the Court Integrated Services Program. While on bail you engaged with your CISP supervisors and the AOD program that is attached. That program submitted reports about you on 30 July, 27 August, 16 September, and 23 November 2021. I will return to these reports later in these reasons.
18	For a time, your case was set down for a County Court plea on 1 October 2021; originally some matters were going to be contested at the plea, however, when the plea ultimately began on 6 December 2021, no matters of fact were in contest between the parties.
19	On the plea on 6 December 2021 the question of the applicability of Verdins limbs arose. Time was sought to obtain a further neuropsychological report to address those matters.
20	That report was obtained and provided to the court; it bears the date of 10 February 2022.
21	On 22 February 2022, three days before the return of the plea your lawyers sought to mention the case given that you had, by that stage, been remanded in custody on new offending, allegedly committed while you were on bail. 
22	The return of the plea on 25 February 2022 was therefore conducted under quite different circumstances to the plea on 6 December 2021.
Personal circumstances
23	You are now 63 years old. At the time of your offending, you were 62.
24	You were sentenced by Her Honour Judge Gaynor in this court on 18 December 2012, and in the course of that sentence Her Honour deals carefully with the facts in your background. This history was consistent with but slightly more detailed than the one provided to me on the plea, and I have borrowed from it in this sentence.
25	You were an only child of your parents, who separated when you were about six years old. You would later describe your parents' relationship as violent and hostile. Your mother formed a new relationship and left to live in Sydney when you were still very young. Initially you went with her, but you were returned to your father and brought up by his mother who passed away when you were 17; your father worked long hours.
26	After an incident where a fire was lit at your school by students you were associated with (apparently acting out of loyalty to you after a dispute you had had with a teacher), you were, aged 14, made a ward of the state and kept in the Turana Youth Detention facility for about 6 months. You found this period very difficult and formed associations with convicted criminals. You never returned to school. You began a transient existence from the age of 15, and in July 1975 you were convicted of charges of theft and assault; you had given a false date of birth and therefore served two months' imprisonment in Pentridge, even though you were only 17.
27	After your release you met and married Sue, and did not appear before a court again until 1983. You worked driving trucks and bobcats, but in 1988 you were convicted of manslaughter; apparently in the context in which you had formed an attachment to a woman outside your marriage and she was killed when you fought with another man in her presence. You had taken a gun with you to the house.
28	Somewhere in this history, you commenced using heroin, and convictions for trafficking flowed. Your first son was born in 1993; in the same year you received a head sentence of six years' and eight months’ imprisonment for trafficking. Your wife Sue continued to accept you home after you had served your sentences. Your second son was born in 1999 while you were on remand. You were released from gaol after serving another sentence in 2009, and by this time your wife had finally separated from you after 35 years of marriage. Your sons are now aged 23 and 28 and both live at home.
29	In this context, in about 2009, you relapsed into drug use again and committed the offending for which you are dealt with in 2012.
30	The environment you grew up in from your earliest years was unstable; as a young person you were detained in what would have been frightening institutions. Your adult life has been characterised by an addiction to illicit drugs and gambling, and offending that appears to be closely connected to both problems. Despite all this, your wife Sue has continued to loyally support you, even when the marriage was over, and most recently supported your application for bail and your living in her family home from 27 May 2021 until your more recent remand into custody.
31	Throughout your time on bail and through the reports of Ms Pugliese and your AOD counsellor Ms Mladenovic in the CISP program, you expressed the deepest gratitude for the fact that your former wife continues to support you and gratitude for the fact that you at least now have some relationship with your adult sons, one of whom is diagnosed with autism. In this period, while on CISP bail you repeatedly expressed your desire to return to and repair those relationships after a lifetime of disappointing your family.
32	Much was written and said during the CISP reports and the judicial monitoring on bail about your dedication to fixing the problems in your life, specifically about your addictions, the service of which has shaped your existence and devastated your relationships for over 40 years. Those reports powerfully suggested that you were a person embracing all of the help you were being offered, and asking for more help, and engaging with your workers in a spirited and sincere way.
33	In this context, your remand into custody on further charges currently before the Broadmeadows Magistrates' Court was disturbing: was your success on CISP just apparent, or was it real, and you were just vulnerable to a relapse into past behaviours? 
Significant health issues
34	Two neuropsychological reports were tendered on your plea authored by 
Ms Alison Schockman and dated 15 November 2021 and 10 February 2022. 
I have taken the contents of both these reports into account in arriving at your sentence. Further, I also received a medical report dated 16 October 2020, which sets out a range of serious medical conditions from which you now suffer.
Report of Dr Diamantaris 
35	This report sets out a range of physical conditions from which you suffer among which are ongoing severe ischaemic heart disease, diabetes, morbid obesity, against the background of a quadruple bypass in 2014. You are said to be at a very high risk of an acute cardiovascular event such as heart attack or stroke. There is also a high risk of heart failure, or complications from diabetes. 
Dr Diamantaris recommends that you be under continued medical surveillance, given the gravity and severity of your health problems.
Neuropsychological opinion
36	Turning now to the neuropsychological reports. Ms Schokman acknowledges your regular polysubstance abuse spanning four decades. Testing revealed significant cognitive deficits likely, in the opinion of Ms Schokman, to have a multifactorial aetiology, 'polysubstance abuse, vascular related cognitive impairment as well as the existence of chronic pain and psychological factors impacting on cognitive efficiency'. An acquired brain injury (ABI) of multifactorial aetiology is diagnosed. 
37	In her second report, Ms Schokman notes that the ABI is a permanent cognitive condition unlikely to improve substantially even with abstinence from substances. The effect of this condition, she says, will likely continue to negatively impact your cognition and day-to-day functioning. Your severe medical comorbidities increase the risk of cardiovascular events such as heart failure, all of which would combine in Ms Schokman's opinion to produce a higher potential for severe cognitive impairment. In Ms Schokman’s opinion, the further custody may result in the resurfacing of or exacerbation of previous mood difficulties in the context of a history of severe depressive disorder with marked features of anxiety. I will return later in these reasons to the consequences of these opinions.
Nature and gravity of the offending
38	Turning now to the nature and gravity of your offending. Your case has resolved to a charge of trafficking simpliciter even though you had 71.1 grams of methamphetamine in your possession for this purpose. A commercial quantity, as I have said, at this time was 50 grams. I do have regard to the quantity the subject of this charge, but I am careful also not to sentence you for the more serious charge of trafficking in a commercial quantity. I understand that the prosecution conceded an inability to establish the requisite intent for the more serious charge.
39	The charge on the indictment is referable to trafficking on a single day, and I take that into account. The amount of the drug in your possession was divided into packages apparently destined each for individual sale.
40	It would appear that to some degree, your trafficking takes place in the context of a longstanding addiction, however your lawyer, when asked, did not make a submission that this offending should be viewed purely as 'street level trafficking' to support addiction per se. The prosecutor urged a conclusion that this was simply a continuation of your longstanding profession as a drug trafficker.  I will conclude that your offending takes place in the context of your addiction but is not wholly explicable in that context. This informs my assessment of your moral culpability, and I see it as lower, to some degree, than that of the full-scale, pure profit-driven professional trafficker.
Criminal Record
41	You have a relevant, and fairly relentless criminal history commencing in 1975, and have been sentenced in Courts in Prahran and Preston; these names tell us something of the historical reach of your trouble. Over a 32 year period you have been sentenced for trafficking in drugs on six separate occasions between 1988 and 2012 – the last of these sentences being handed down in this Court by Her Honour Judge Gaynor.
42	Over this time you have also been subject to significant periods of imprisonment – all, I note, highly ineffective at deterring you. This fact was conceded by the prosecutor on your plea. 
43	You have also been dealt with for a range of weapons and violence charges commonly found to co-exist with drugs charges. 
Subsequent charges
44	You are now charged with committing an indictable offence while on bail, making a threat to kill, and unlawful assault (referable to 15 December 2021), and trafficking in a drug of dependence methylamphetamine, possession of a drug of dependence, dealing with property suspected of being the proceeds of crime, committing an indictable offence while on bail, and a VicRoads offence.
45	These matters have not yet been concluded but I understand that you will be accepting responsibility to at least the possession of methylamphetamine. Naturally these charges are not to be treated as prior convictions for the purposes of this sentence, but they are to be taken into account to some degree in assessing your prospects for rehabilitation. Nor, I add, do you stand to be repunished for your prior offences.
Matters in mitigation
Plea of guilty
46	Turning now to matters in mitigation. First, your plea of guilty. Your case moved through the court system during the very worst of the COVID crisis. Ultimately, you resolved your case to this plea in that context, thereby removing one more case from the enormous backlog of cases in this court that threatened at one stage the proper administration of justice. This is a very significant matter, and I take into account, and I emphasise that without this factor the sentence I would impose on you today would be significantly higher.
47	Once your offending was detected, I note that you assisted police in locating the stolen car, and I take this into account.
48	Your case has suffered from delay unconnected to anything you have done. Your access to court hearings and to expert appointments has been hampered by COVID-19, and the restrictions imposed to protect the community. I take these delays into account on your sentence. I note also that the charge the case ultimately settled to was not the most serious charge on which you were committed to this court.
Verdins
49	Turning now to Verdins considerations. On your plea, it was argued that limbs two, five and six of the Verdins case are engaged. At a later hearing, however, your barrister withdrew this submission, and argued that the evidence of 
Ms Schockman did not rise to a level to engage those principles.
50	Be that as it may, I do not regard those materials to be irrelevant on sentence.
51	I accept that your acquired brain injury, and the cognitive deficits it imposes on you, will make your navigation of the custodial environment, even though you are well familiar with it, more precarious and more difficult for you.
52	I also note that you have what has been described as extremely precarious physical health, which not only may cause further cognitive decline, but which leaves you vulnerable to falls and other acute adverse events in custody. I take this into account in considering the burden of future imprisonment on you, and indeed, on past imprisonment too.
Remorse
53	I accept that your plea contains within it an aspect of remorse, and that you have, at least to some degree, constantly expressed complicated and heartfelt remorse for the way you have conducted your life, and the way you have offended during your adulthood. Your relapse does not cause me to think this remorse was necessarily insincere – it just was not sufficiently robust to prevent you from returning to more trouble.
Prospects of rehabilitation 
54	I must assess your prospects of rehabilitation. This is an extremely difficult exercise in your case. Your engagement with the Court Integrated Services Program and all the benefits it made available to you was nothing less than complete, and, it appeared, wholehearted. Your counsellors made consistent reports of your excellent progress, and your frank engagement with them, well beyond what was required of you. For a while, at least, you appeared to be abstaining from drug use and rebuilding relationships. This process commenced on 27 May 2021 with the grant of your bail but by 10 February you had been arrested and remanded on matters now before the Magistrates' Court.
55	As I have said at the time of this sentence those new matters are unproven. There is, however, some acknowledgement of possession of methylamphetamine.
56	This suggests the conclusion that at some stage on bail you relapsed and returned to previous habits and the illegal trafficking that accompanies them – despite the high level of services you were engaged with and your apparent total embrace of those skilled workers' help and attention. I must admit that I earlier had great optimism for your rehabilitation, but this has clouded over in the light of these more recent events. My assessment for your prospects of rehabilitation is damaged, and, I must admit, despite those other optimistic times, I now have quite guarded assessments in this regard.
Bugmy principles
57	As I have said, your childhood and early youth was characterised by unstable relationships and ultimately your being made a ward of the state at a very young age, which at that time meant detention in the Turana Youth Centre. As the Court said in Herrmann, sentencing should take account of lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender's formative years. I take into account your background, and how it exposed you to developing habits and conduct that have had some lifelong effects, and I take this into account on your sentence. This, I consider, does reduce, even after all this time, your level of moral culpability as set out in the case of Herrmann. Of course, such a submission travels with a countervailing consideration, which is that the need for community protection may be increased in the circumstances, and I take this into account.
Relevant sentencing principles
58	In sentencing you, I must consider general deterrence, specific deterrence, protection of the community, denunciation and punishment.
59	I am obliged to sentence you in a way that deters other people from behaving in similar ways. This is considered very important in the context of drug trafficking, and the harm it extends across the community. Moreover, you must be punished for what you did. Through me, and this sentence, the community denounces your offending behaviour. I must also consider this sentence's ability to deter you personally from offending again in future.
60	It seems to me that imprisonment has been a poor tool for specific deterrence in your case. But other sentencing principles must be weighed against this in this context.
Current sentencing practices
61	I have had regard to current sentencing practices in this area. On your plea I was referred to the cases of DPP v Pham [2017] VCC 683 and DPP v Govedarica [2018] VCC 1493. I have considered these and other cases in this general category. No case is exactly like yours, but I must sentence you in this landscape. 
COVID-19 pandemic
62	I take into account the current circumstances surrounding the COVID-19 pandemic. I accept that the time you spent in custody previously, as well as now, is made much more difficult on account of restrictions, some of which, and the uncertainty of which, are not over. Although 2022 appears to promise less danger of the virus altering the way we live, the pandemic is not over yet and I take that into account in a reduction of your sentence. Your particular health problems surely make you more vulnerable still in this context.
Disposition:
63	Turning now to the sentence itself, Mr Grech.
64	On Charge 1: trafficking in a drug of dependence, you are convicted and sentenced to 2 years and 7 months’ imprisonment.
65	On Charge 2: theft, you are convicted and sentenced to 4 months’ imprisonment.
66	On Charge 3: possession of a drug of dependence, you are convicted and sentenced to 1 month imprisonment.
67	On the related summary offence 4: driving whilst suspended, you are convicted and sentenced to 2 months’ imprisonment.
68	On related summary offence 10: dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to 4 months’ imprisonment. 
69	I direct that 1 month of the sentence imposed on Charge 2 and 1 month of the sentence imposed on the related summary charge 10 are to be served cumulatively upon each other and upon the sentence imposed on Charge 1. 
70	Resulting in a Total Effective Sentence of 2 years and 9 months’ imprisonment. 
Pre-sentence detention
71	I declare pursuant to s18 of the Sentencing Act 1991, that you have already served 337 days by way of pre-sentence detention on this case. 
s6AAA reduction 
72	Pursuant to s6AAA of the Sentencing Act 1991, I state that but for the plea of guilty, I would have imposed a head sentence of three years and seven months with a non-parole period of two years and one month.
Licence Disqualification
73	On Charge 2: theft and related Summary Charge 4: driving whilst suspended, I order that your license be cancelled and that you be disqualified from driving for a period of 18 months.
Ancillary Orders
74	I make the orders for disposal of the drugs and the forfeiture of the cash as requested.
---