DPP v Tarasinski [2024] VCC 1721

(a) In the bathroom, a double-barrel sawn-off shotgun was found in the bathtub, giving rise to Charge 1, prohibited person possess firearm.

1. In your bedroom, the following items were found:

(a) On your bed:

(i) a clear resealable bag (referred to as 'CRB' for short) containing a clear crystal substance,

(ii) $16,515 cash in assorted denominations. This gives rise to Charge 6 on the indictment, knowingly deal with proceeds of crime.

(b) On a chair: a cash-counting machine.

(c) On the floor:

(i) a shampoo bottle which contained a clear viscous liquid; and

(ii) two 12-gauge shotgun shells in a black-coloured bag. This gives rise in part to the related summary Charge 2.

(d) In a chest of drawers there were the following four items:

(i) Four CRBs containing a clear crystal substance,

(ii) One CRB containing a white powder,

(iii) One CRB containing a block of off-white powder; and

(iv) One CRB containing off-white powder.

1. In the hallway there were three 12-gauge shotgun shells in a PVC pipe. This discovery is also encapsulated in the summary offence, Charge 2.
2. You were taken to the Werribee Police Station, and after taking part in a record of interview, your parole order was revoked. You were then returned to custody.
3. Subsequent analysis of the substances found at your premises revealed that you were in possession of 96.7 grams of a substance containing methylamphetamine, 83 grams of which was the pure substance. This gives rise to the trafficking charge on the indictment.
4. Further, you were found to be in possession of .3 of a gram of cocaine, 2.7 of a gram of diacetylmorphine, and 31 grams of 1,4-butanediol.
5. In your record of interview, you confirmed that you had told the police where the shotgun was and in relation to the two rounds of ammunition in the room. You also confirmed that there were some drugs in the room.
6. In relation to the money seized, you said that you had won a lot of money since you had been out, both online and at the RSL and at a couple of other venues. You also said that you received government benefits and you earned money through various labouring jobs.
7. At the plea hearing, Mr Casey who appeared for you told me that a larger sum of money was found at your premises, being approximately $30,000. Through negotiation, it was accepted by the prosecution that approximately $14,000 to $15,000 was not alleged to be proceeds of crime.
8. Mr Tarasinski, your offending is serious and calls for punishment which is just in all the relevant circumstances. Your conduct must be appropriately denounced.
9. Through your counsel, you accepted that you were solely involved in the trafficking of the methylamphetamine and stood to gain from the profits of trafficking. Therefore, you had the principal role in the trafficking activity.
10. As the learned prosecutor indicated in his written submissions, the weight of the methylamphetamine was just over 27 times the threshold for a trafficable quantity (the threshold being three grams) in relation to pure methylamphetamine, and over 1.6 times the commercial quantity, being 50 grams. I make it clear that I sentence you on the basis of trafficking simpliciter. However, I accept that this is a serious example of that offence.
11. I have also factored in that there was a significant quantity of cash found in your possession, which is the subject of a charge on the indictment, and that you had access to a sawn-off shotgun. As the learned prosecutor said, a weapon such as this is not uncommon in the drug trafficking world. At the plea hearing, I was told the ammunition which was found was not analysed in relation to the firearm, so it was not alleged that it could be used for that firearm. However, subsequent to the plea hearing, I was advised that the ammunition could fit the weapon, albeit that the gun, which was in working order, was not test fired using the seized ammunition. In assessing the objective seriousness of the firearm offence, I also take into account that the weapon was not loaded, albeit that there was apparently the means to do so.
12. It is an aggravating feature of your offending that you reoffended during a period on parole. I make it clear that I do not double-punish you in relation to this aspect in circumstances where the presumption of concurrency does not apply because you have committed the offence whilst on parole. Also, there is the summary offence which deals with an aspect of this.
13. Although I am aware that you have some significant mental health problems and difficulties associated with your upbringing, and that you have a long-term drug issue yourself, it is rather breathtaking that you involved yourself in such serious offending, having endured a harsh form of custody only six months earlier, and knowing what would happen if you reoffended.
14. In sentencing you I take into account your criminal history, which is a fairly lengthy and concerning one. Your first offending occurred in 2005 in relation to a charge of possessing cannabis, cultivating a narcotic plant, using cannabis, and dealing with property suspected to be proceeds of crime. You were dealt with by way of a non-conviction adjournment with an order to pay into the court fund and to complete an approved drug education and information program.
15. There is an apparent gap in your offending until 2009, when you were dealt with for various offences over the year, including theft in May 2009. In October 2009 you were dealt with for a number of possession and use drug charges relating to cannabis, anabolic steroids, amphetamine, ecstasy, and prescription drugs, as well as a number of driving offences. In relation to some of this offending, you were convicted and given a six-month community-based order and ordered to perform 60 hours of unpaid community work. In December 2010 you were dealt with for failing to comply with a community-based order. You were convicted and fined instead. On that day you were also dealt with in relation to driving charges, being in possession of ammunition without a licence, being in possession of a prohibited weapon without exemption or approval, as well as using cannabis and being in possession of a prescription drug. You were convicted and sentenced to an aggregate term of imprisonment of four months to be served by way of intensive corrections order.
16. In April 2011, you were dealt with for one charge of contravening a family violence intervention order and given a without conviction adjournment, with a condition that you complete the men's behavioural change program.
17. On 17 April 2012 in this Court you were convicted of aggravated burglary - imitation firearm, make threat to kill - reckless as to fear, theft, and possess methylamphetamine. You were sentenced to a total effective sentence of two years and three months with a non-parole period of 17 months. Two hundred and twenty-nine days were declared as having already been served in relation to those matters.
18. On 16 May 2012 in the Magistrates' Court you were convicted of dealing with property suspected to be proceeds of crime, dishonestly undertaking the retention of stolen goods, four charges of possession of a drug of dependence being a prescription drug, failing to answer bail, and further driving offences including driving whilst authorisation suspended. In relation to some of this offending you were sentenced to an aggregate of six months' imprisonment, with 28 days reckoned as already served. In relation to some of the offences you were dealt with by way of a fine.
19. On 18 July 2012 you were dealt with for prohibited person in possession of a firearm, prohibited person in possession of an unregistered firearm, possession of amphetamine, and possession of cannabis. You were sentenced to an aggregate term of one month imprisonment in respect of these offences.
20. On 4 September 2012 you were dealt with for failing to comply with the intensive correction order imposed on 15 December 2010. In respect of the matters which were the subject of that order, you were ordered to serve the unexpired portion of 112 days' imprisonment.
21. On 14 June 2017 you were convicted of unlawful assault and fined $750.
22. On 16 June 2017 in the Magistrates' Court you were dealt with for two charges of retention of stolen goods, two charges of possession of GHB, three charges of possessing a controlled weapon without excuse, two charges of unlicensed driving, two charges of using an unregistered motor vehicle on a highway, two charges of failing to answer bail, possess methylamphetamine, dishonestly undertake retention of stolen goods, trafficking methylamphetamine, possessing a drug of dependence- being a prescription drug, possessing cartridge ammunition without a licence or permit, handling or receiving stolen goods, possessing ecstasy, possess/use or carry prohibited weapon without exemption or approval, commit indictable offence whilst on bail, three charges of dealing with property suspected to be proceeds of crime, and one charge of negligently dealing with proceeds of crime. You were convicted and sentenced to an aggregate term of 270 days, with 234 days reckoned as already served.
23. On 29 November 2019 in this court, before His Honour Judge O'Connell, you were convicted of home invasion (steal) - offensive weapon, armed robbery, recklessly causing injury, and common law assault. You were sentenced to six years and nine months, and a non-parole period of four years and nine months was directed. Eight hundred and sixty-one days was declared as pre-sentence detention. It was this sentence that was the subject of the parole order which you breached by the offending for which I now sentence you.
24. On 26 February 2020 in the Magistrates' Court you were convicted of having in custody a false document, dishonest undertaking in realisation of stolen goods, possessing a substance for trafficking a drug of dependence, two charges of contravening a conduct condition of bail, and committing an indictable offence whilst on bail. Additionally, you were dealt with for matters said to be 'Re 13/11/2019', which, as has now been explained by the prosecution, is apparently a reference to a part heard plea which took place on that date. Those offences were as follows:

Traffic methylamphetamine, possess cannabis, possess cartridge ammunition without licence or permit, possess prohibited weapon without exemption or approval, possessing amphetamine, possessing GHB, possessing a drug of dependence which was not named, and possessing a thing without authority whilst in police gaol. You were sentenced to an aggregate term of imprisonment of 14 months' imprisonment in relation to these offences, save that you were sentenced to one month in respect of the last-mentioned offence, with time in custody declared as 81 days.

1. Mr Tarasinski, your criminal history is a most concerning one, as it indicates that the offending for which I now sentence you is of a kind in many respects as some of your offending in the past.
2. In sentencing you I take into account your background, which is set out rather briefly in your counsel's submissions, but which you have set out in an 11-page letter which apparently dates back to the later part of 2019. Your background is also recited in his Honour Judge O'Connell's sentencing remarks and referred to in a second report from Mr Cummins, psychologist, as well as in the most recent psychological report of Ms Cidoni dated 19 August 2024.
3. As recorded by his Honour Judge O'Connell, your parents were of Polish origin and worked hard in a fish and chip shop in country Victoria. You were the second child of four children. You have an older brother and two younger sisters.
4. Your parents worked very long hours, with your father often being absent or else focused on your older brother, who was good at sport, unlike you. In your letter, you gave an account of your treatment at the hands of your father in very graphic terms, which involved regularly whipping you with a power cord from when you were about three or four years old, and also with his hands. Initially, your family lived in rural Victoria. However, you all moved to Melbourne after the fish and chip shop was sold at a loss. You then lived in an outer suburb of Melbourne.
5. According to Ms Cidoni's report, your parents are still together and reportedly have a good relationship.
6. You performed well academically at primary school but struggled with behavioural issues which you later attributed to what was happening to you at your father's hands. You attended a special school once a week for a few years during primary school. You attended secondary school for years 7 and 8 before being expelled for cannabis use, going on to another secondary school where you were also expelled for the same reason. Your highest level of education completed is

Year 8. 7. You have not pursued any tertiary qualification. 8. You began your first paid job at a supermarket when you were 13 or 14 years old, working there for two years. 9. When you were 14 you were told to leave home due to your drug use. You lived with your uncle for three or four years during which time you were smoking marijuana extensively. 10. Your first serious relationship was with a young woman called Melissa with whom you were involved from when you were 17 to 24 years old. According to

Ms Cidoni's report, during your relationship, both of you were using drugs and there were instances of mutual domestic violence. You lived together for eight years but eventually split as your relationship had deteriorated, apparently due to Melissa's worsening condition of substance abuse and loss of interest, this is according to what you told Ms Cidoni. You have a daughter with Melissa who is now 13 or 14 and you maintain contact with her. 11. You were then in a relationship with a young woman called Jessica from when you were 26 to 29 years of age. You have a son named Jobe from this relationship. Your incarceration eventually led to this relationship breaking down. Jessica started using drugs with you. You remain on good terms with Jessica and you have stayed close to your son, apparently seeing him daily before your current imprisonment. 12. You had a relationship with a woman called Dana which lasted for five years, ending two to three years ago due to your imprisonment. Your relationship was said to be free from drug use and violence, with Dana remaining clean throughout. 13. Until your arrest, you were living with a friend in Werribee, being Mr Eddy. According to Ms Cidoni you planned to live temporarily with another friend in Werribee South upon your release from gaol, which is somewhat at odds with what Mr Casey told me. He told me that you were intending to return to live with

Mr Eddy. 14. I understand that at the time of the offending for which I now sentence you, you were heavily using drugs, principally, methamphetamine. According to Ms Cidoni, your heavy drug usage impaired your judgement and decision making. 15. In your life, you have also lost some friends which has added to your experience of mental health symptoms. 16. According to the report of Ms Cidoni, you reported a period of problematic alcohol use in 2013, drinking six cans per day although this was not frequent. Subsequently, you used alcohol primarily in a social context. 17. You started using cannabis when you were 10 or 11 years old. This escalated to daily use of two to three grams by the time you were 18 or 19 years old. However, you eventually stopped cannabis use about 10 years ago, switching to speed and ice. You started using methamphetamine when you were 25, with daily consumption of one gram which continued until your incarceration. You also used GHB heavily, consuming 20 millilitres daily until about two years ago when you were incarcerated. You have also dabbled in MDMA and cocaine, primarily on weekends. 18. Your longest period of abstinence was five or six years, following a car accident in which you were involved and subsequent sentencing. However, you have relapsed multiple times after previous incarcerations, with a duration before relapse varying from between a month to several years, depending on the circumstances. 19. In the past, you have received treatment, including alcohol and other drug counselling in 2017. You are currently taking methadone on a daily basis in prison which you reported to Ms Cidoni had been helpful. 20. According to Ms Cidoni's report, whilst in prison you have completed all available relapse and methamphetamine related programs. Again, this is somewhat at odds with what Mr Casey told me in relation to your current imprisonment, however, it might well be that Ms Cidoni is speaking about the courses you have undertaken in the past. 21. You also have a history of gambling, especially with the pokie machines which you reported was always linked to methamphetamine use. 22. In terms of your work history, after the birth of your daughter, you started working as a concreting contractor, which was a job that you maintained from the age of 18 until you were 21 or 22. After the death of your best friend, Zed, you ceased full-time work and worked intermittently, fixing houses. 23. You have received Centrelink benefits during periods of unemployment. 24. In 2016 you were involved in a car accident which resulted in an injured collar bone and sternum, along with lower back pain for which you took a particular medication in the community. However, you have no access to this whilst in prison and I understand you now currently take Panadol. According to Ms Cidoni you continue to experience pain and discomfort from this. I understand from her report that you saw a physiotherapist once a week whilst in the community but that you now see a physiotherapist once a month whilst in prison. 25. You are well supported in the community by your mother and siblings. According to Ms Cidoni's report you also have several good friends. I do hope that the friends, including Mr Eddy, are not drug users and have prosocial attitudes to assist you in rehabilitation. 26. In sentencing you I will allow for a fairly substantial discount in the sentence you would otherwise receive because of the stage of which you entered pleas of guilty. Although you did run a contested committal hearing, which is your right, this involved cross-examination of the drug analyst and police informant. I understand that the cross-examination concerned the drug analysis in relation to the purity of drugs, but I also understand that you were facing a more serious trafficking offence than the one currently before me. In the event, you have saved the witnesses the time and trouble of giving evidence at trial and conducted limited cross-examination at the committal hearing, with the result that a lesser charge was accepted by the prosecution. I have also taken into account in your favour your co-operation with the police immediately upon them attending at your premises. Such cooperation was also reflected in the Record of Interview, although your answer in relation to the money found was not entirely true, as some of this was proceeds of crime as you now admit. 27. I also factor in that there has been some delay in this matter through no-one's fault but that you have had these matters hanging over your head since your arrest. 28. In sentencing you I have taken into account the psychological material - in particular, the report of Ms Cidoni dated 19 August 2024. 29. In her report, Ms Cidoni noted that you were diagnosed with major depressive disorder, dysthymic disorder, and cannabis dependence by clinical psychologist, Tamsin Kane, in 2003, and with persistent depressive disorder by clinical psychologist, Carla Lechner, in 2018. Further, she noted that Jeffrey Cummins, clinical and forensic psychologist, also diagnosed you as suffering from a major depressive disorder in his assessment in 2019. 30. Ms Cidoni found that you currently suffer from persistent depressive disorder which was mild and in partial remission with intermittent major depressive episodes, without current episode. Also, she found that you suffered from post-traumatic stress disorder and substance use disorders involving stimulant and GHB - these were in sustained remission in a controlled environment. She said that you demonstrated symptoms of persistent depressive disorder which you had been experiencing for a sustained period in your adult life, after a series of stressors. She said that these appear to originate from your early childhood due to your childhood experiences to which I have referred. She then said that eventually when you were made to leave home at 14, your symptoms in this regard were due to your drug use which likely exacerbated your feelings of abandonment. 31. Ms Cidoni said that it was apparent that you had experienced one or more major depressive episodes in at least the preceding two years, but that you did not currently meet the full criteria for a major depressive episode. She spoke of you reporting the experience of negative or unwanted thoughts and feelings, along with re-experiencing traumatic events through recurring memories and vivid nightmares. The traumatic events include domestic violence at the hands of your father and the loss of two close friends, one in a motor vehicle accident and the other who died by suicide. She said that your symptoms aligned with the criteria for post-traumatic stress disorder 'characterised by intrusive thoughts, avoidance of trauma - related stimuli, negative alterations in cognition and mood, and hyperarousal.' 32. She also found that your pattern of substance abuse, especially methamphetamine and GHB were maladaptive coping mechanisms and forms of self-medication that served to exacerbate your symptoms. 33. She opined that your drug use played a significant role in your offending behaviour, with methamphetamine use, in particular, being a consistent factor in your criminal actions, 'impairing his judgement and increasing his propensity for risky and unlawful behaviour'. 34. I must say that in addition to your drug use, although the trafficking was funding this, I do not accept that you were effectively living hand to mouth in this regard as many drug addicts do. The amount of cash at your premises and the quantity of the methamphetamine in your possession for the purpose of trafficking indicates that part of your motivation was to make a profit. 35. In sentencing you, I apply the Bugmy principles in a general way, having given full weight to your deprived background because of your father's conduct towards you. I make a reduction to a fairly limited extent to the weight that would otherwise attach to general deterrence in all the relevant circumstances of your case. Fairly strong weight must still attach to this sentencing principle in a bid to deter others from behaving as you have. It was not submitted by your counsel that there were any Verdins principles involved in your situation which might serve to reduce your moral culpability or the weight that ought attach to other relevant sentencing considerations, although in the end, he submitted that Verdins principles 5 and 6 had application in your case whilst the learned prosecutor submitted that only principle 5 had any application. 36. In the end, I allow for the fact that gaol will be somewhat harder for you because of your mental health conditions as reported by Ms Cidoni, however, I am unable to be satisfied on the balance of probabilities that your mental health is likely to deteriorate whilst in prison. 37. There are no other Verdins considerations which apply in your case. 38. I take into account in a general way that when you were sentenced by His Honour Judge O'Connell, you served a good deal of the non-parole period in harsh conditions due to COVID measures. These saw you being subjected to 23-hour lockdown days on many occasions and an inability to have visitors. Also, there were other facilities at the prison such as the gym and places of religious observance which could not be pursued by you. I take these hardships into account in a general way, but it does not really impact my consideration of the principle of totality and how it ought be applied in circumstances where the offending before me occurred after you were released from that most onerous sentence, only returning to gaol after you reoffended some six months later. However, totality is a real consideration in relation to your present situation in circumstances where, until recently, you were undergoing the balance of your head sentence imposed by His Honour Judge O'Connell and I understand this expired on 25 September this year. This means that you have served approximately 21 months in relation to the other matters for which Judge O'Connell sentenced you. I am very mindful of this in sentencing you but also mindful of the fact that the offending which you engaged in on the occasion before me is separate offending and, had I sentenced you when I was scheduled to on 18th September, there was no presumption of concurrency in respect of the sentence I imposed and the period of imprisonment you were undergoing. 39. I have also taken into account that during your period in custody on this occasion, there have been apparently no programs for you to be able to undertake. I understand that this is because you are serving a sentence, but you are housed at the MRC. Accordingly, the sentence that you have been undergoing reflects a harsher form of imprisonment than would otherwise be the case. 40. As Mr Casey submitted, you are now getting to the age and stage where you will either plateau in terms of your drug taking and criminal offending or you will be spending ever increasing periods in gaol. Certainly, there is a danger of you becoming institutionalised, in circumstances where you have spent very little time in the community - having spent 10 years of the past 13 and a half years in gaol. As Mr Casey submitted, your rehabilitation is very much linked to you properly addressing your mental health issues and your drug issues which are interrelated. 41. You have told Mr Casey that you realise that you need substantial help and that you will need to abstain from drug taking when you are released from gaol. You have told Mr Casey that your experience of gaol has been like, to quote you, 'groundhog day' and you have no wish to return there in the future. 42. In further written submissions, Mr Casey told me that you had abstained from drugs whilst in gaol on this occasion. This is supported by 10 clear drug screens which have now been provided to the court. 43. In sentencing you I have had regard to current sentencing practice including the cases referred to me by the learned prosecutor. Sentencing practice is but one sentencing consideration and not a controlling one. 44. In view of your offending in this case, the fact that it occurred whilst you were on parole, your criminal history, your mental health and drug issues, but also factoring in your community support, your cooperation with police, preparedness to plead guilty, as well as other matters in mitigation, I assess your prospects of rehabilitation as being guarded. I must place fairly substantial weight on specific deterrence. 45. As you have well and truly acknowledged yourself, Mr Tarasinski, it is well and truly time for you to take stock and to be a positive role model for your children. You need to work through the trauma that you have suffered, with the help of appropriate professionals and to maintain abstinence from drugs and negative influences in your life. As I say, if you do not, if you manage to survive, you will be spending ever increasing periods in gaol. 46. Having considered all the material before me and provided on your behalf, as well as the submissions by counsel, I have arrived at a sentence which in my view does justice to the weight which I have attached to all relevant sentencing considerations. 47. You are convicted of the offences. 48. I make the two Forfeiture orders and the one Disposal order sought by the prosecution which are not opposed by you. 49. You are sentenced to the following periods of imprisonment in respect of the charges on the indictment:

(a) Charge 1, 15 months

(b) Charge 2, three years

(c) Charges 3, 4 and 5, six months' imprisonment for each of these;

(d) Charge 6, 12 months' imprisonment.

1. In relation to the Summary Offence of possess cartridge ammunition, you are fined $500.
2. In relation to the charge of breach condition of parole, you are sentenced to two months' imprisonment.
3. The sentence on Charge 2 on the indictment will be the base sentence. I direct that three months from the sentence on Charge 1 and six months from the sentence on Charge 6 be served cumulatively with each other and the sentence on Charge 2 but that otherwise the sentences be served concurrently with one another. This produces a total effective sentence of three years' and nine months' imprisonment.
4. I direct that you serve a non-parole period of 18 months before becoming eligible for parole.
5. I declare that you have already served 35 days.
6. If not for your pleas of guilty I would have sentenced you to a total effective sentence of five years' imprisonment with a non-parole period of three years. Take a seat please, sir. Is there anything arising, counsel?
7. MR CASEY: No, Your Honour.
8. HER HONOUR: Mr Teo?
9. MR TEO: Not on my end, Your Honour.
10. HER HONOUR: Very well. Yes, thank you, if you could remove Mr Tarasinski. All right, yes, thanks, if we can adjourn.