CDirector of Public Prosecutions v Cacopardo
[2025] VCC 633
•21 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-23-02042
| DIRECTOR OF PUBLIC PROSECUTIONS |
| (CTH) |
| v |
| GIANLUCA CACOPARDO |
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JUDGE: | HIS HONOUR JUDGE KELLY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 April 2025 |
DATE OF SENTENCE: | 21 May 2025 |
CASE MAY BE CITED AS: | CDPP v Cacopardo |
MEDIUM NEUTRAL CITATION: | [2025] VCC 633 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Trafficking in a Controlled Drug — Dealing with Money Reasonably Suspected of being Proceeds of Crime — Possession of a Drug of Dependence — Trespass — Family hardship — Guilty plea — Limited recent criminal history — Disadvantaged childhood — Extra-curial punishment
Legislation Cited: Criminal Code Act 1995 (Cth); Drugs, Poisons and Controlled Substances Act 1981 (Vic); Summary Offences Act 1966 (Vic); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic)
Cases Cited:Jung v The Queen [2022] VSCA 68; R v Jacques [2021] SASCA 94; Ky Boi Tran v The Queen [2020] VSCA 284; R v Choi & Pereira [2017] SASCFC 54; The Queen v Harrington (2016) 11 ACTLR 215; Atanackovic v R (2015) 45 VR 179; Samarakoon v The Queen [2018] VSCA 119; DPP v Hermann [2021] VSCA 160; DPP v Terrick (2009) 24 VR 457; Bugmy v The Queen [2013] HCA 37; R v McKee [2003] VSCA 16; Silvano v R [2008] NSWCCA 118; RH v R [2019] NSWCCA 64.
Sentence:Charge 1 and 2: Total effective sentence of 2 years imprisonment to be released forthwith on a recognisance release order to be of good behaviour for 3 years and pay a bond of $5,000.
Charge 3: 3 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Farrell (Sentence Indication) Mr M. Keks (Plea) | Commonwealth Director of Public Prosecutions |
For the Accused | Mr P. Dunn KC (Sentence Indication) Mr D. Dann KC (Plea) | Radovic Lawyers |
HIS HONOUR:
Introduction
1Gianluca Cacopardo, you have pleaded guilty to one charge of trafficking in a controlled drug,[1] one charge of dealing with money reasonably suspected of being the proceeds of crime,[2] one charge of possession of a drug of dependence,[3] and a related summary offence of trespass.[4]
[1] Contrary to s 302.4(1) of the Criminal Code (Cth).
[2] Contrary to s 400.9(1) of the Criminal Code (Cth).
[3] Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[4] Contrary to s 9(1)(e) of the Summary Offences Act 1966 (Vic).
2The maximum penalties for each of these offences are:
(a)Trafficking in a controlled drug – 10 years' imprisonment and/or a fine of 2,000 penalty units.
(b)Dealing with money reasonably suspected of being the proceeds of crime – 3 years' imprisonment and/or 180 penalty units.
(c)Possession of a drug of dependence – 400 penalty units and/or 5 years' imprisonment.
(d)Trespass – 25 penalty units or imprisonment for six months.
Summary of offending
3On the afternoon of 2 May 2023, you and two associates were observed attending a depot in Footscray that holds empty shipping containers. The following day you attended the same site with two associates and, with the aid of a stepladder, entered the premises of Medlog Oceania without authorisation. This offending is the subject of the related summary offence – Trespass.
4On 3 May 2023, investigators searched your home, locating cash and drugs.
5Police found in the ensuite of the master bedroom
(a)A white powder-like substance on the floor near the toilet;
(b)Several zip lock bags within the toilet bowl, one of which contained a quantity of white powder; and
(c)A black mobile phone in a black leather case containing your driver's licence, bank cards and another identification card.
6Analysis of the white powder revealed that you possessed 42 grams of cocaine, 21 times the trafficable quantity. This offending is the subject of Charge 1 – Trafficking a controlled drug.
7Three bundles of cash to the total value of $261,995.30 in predominantly $100 and $50 notes were found in the master bedroom. This cash was in your possession and was reasonably suspected of being the proceeds of your drug trafficking. This offending is the subject of Charge 2 – Dealing with property reasonably suspected of being the proceeds of crime.
8In the cellar, eight bags containing green vegetable matter were located. Analysis revealed that you possessed 3.6477 kilograms of cannabis, over seven times the traffickable quantity. This offending is the subject of Charge 3 – Possession of a drug of dependence.
Circumstances of offender
9You were born in Sicily and at the time of offending, you were 37 years old. You have two biological children, a daughter and a son, from different mothers. They are aged 16 and four respectively. I understand that your daughter has a brother who spent some of his formative years with you. Your step-son does not know his biological father and regards you as his father. The psychological report of Luke Armstrong suggests that you are estranged from your step-son as a result of your remand.
10Your family dynamic was dysfunctional. When you were around six years old, your mother took you and your brother back to Italy to escape your father. Around two years later, you returned to Melbourne with your mother and brother to live with your father.
11Your father was violent and used illicit drugs. From a young age, you were exposed to his drug use and started taking drugs yourself. At age 16, your father introduced you to sex workers.
12You have previously been employed in retail and construction. In recent years your main employment has been as a personal trainer.
Procedural history
13You were arrested on 3 May 2023.
14The first committal mention was listed on 15 September 2023. The mention was adjourned to allow your advisers time to obtain financial documents. Additional time was sought until May 2024.
15On 7 June 2024, you applied for a sentence indication. I indicated that if you pleaded guilty, I would impose a maximum total effective sentence of two years and six months' imprisonment, to be released after 12 months on a two-year Recognisance Release Order with conditions to be of good behaviour and to pay a bond of $5,000. You accepted that indication. You were arraigned on 20 June 2024.
16The matter proceeded to plea on 10 April 2025.
Defence Submissions
17Mr Dunn submitted at the sentence indication hearing that a recognisance release order is appropriate. He relied on your limited recent criminal history, your pleas of guilty, your rehabilitation, the impact that a gaol term would have on your family, and the extra-curial punishment that you have suffered.
18Mr Dann maintained at your plea hearing that a recognisance release order was within range.
Prosecution Submissions
19Ms Farrell submitted that a sentence of imprisonment with a non-parole period is required, citing the seriousness of your offending, the gravity of your conduct, and the need for both general and specific deterrence.
Prior Criminal History
20You have a criminal history dating back to 2004.
21Between 2004 and 2009 you amassed convictions for trafficking cocaine and ecstasy, cultivating cannabis, and possessing a drug of dependence. In 2009 you were sentenced to nine months' imprisonment for trafficking cocaine.
22Since 2009, you have appeared twice in the Magistrate's Court, in 2016 and 2022. A fine was imposed on both occasions. Your appearance in 2022 related to a breach of COVID-19 restrictions.
23The prosecution provided a table of comparable cases, which I have considered in determining your sentence.
24In Jung,[5] police executed a search warrant and located $194,000 cash, along with a digital money counter and an encrypted mobile phone at the offender's premises. The offender was charged with dealing with money reasonably suspected of being the proceeds of crime. He was described as a 'cog in the wheel', pleaded guilty at the earliest opportunity, and had very good prospects of rehabilitation. He was sentenced to 10 months' imprisonment.
[5]Jung v The Queen [2022] VSCA 68.
25In Jacques,[6] the offender was charged with trafficking in a controlled drug, dealing with money where there is a risk that it will become an instrument of crime, and dealing with proceeds of indictable crime. He managed a drug trafficking enterprise and sold methylamphetamine to fund his own habit. He had a prior conviction for trafficking in a large commercial quantity of a controlled drug and was sentenced to a total of six years, five months and three weeks’ imprisonment, with a non-parole period of four years.
[6]R v Jacques [2021] SASCA 94.
26In Ky Boi Tran,[7] the offender was charged with dealing with money reasonably suspected of being the proceeds of crime, trafficking a controlled drug, and possessing controlled drugs. He had prior convictions for trafficking heroin and had guarded prospects of rehabilitation. The offender was sentenced to a fine of $400 and three years' imprisonment to be released on a recognisance release order in the sum of $2,000 after serving two years of the sentence.
[7]Ky Boi Tran v The Queen [2020] VSCA 284.
27In Choi & Pereira,[8] the offenders were charged with dealing with money reasonably suspected of being the proceeds of crime to the value of $249,450 and $270,450 respectively. Both offenders entered early pleas of guilty and had no prior convictions. They were sentenced respectively to eight months and 11 months' imprisonment to be released on recognisance release orders after five months and seven months respectively. They were each required to be of good behaviour for 12 months.
[8]R v Choi & Pereira [2017] SASCFC 54.
28In Harrington,[9] the offender was charged with attempting to possess a marketable quantity of a border-controlled drug unlawfully imported and trafficking in a controlled drug. Upon a search of the offender's car and residence, drug paraphernalia was located. The offender was 62 years old with no significant criminal history and had been diagnosed with cancer. He was sentenced to eight years' imprisonment with a non-parole period of four years and six months.
[9]The Queen v Harrington (2016) 11 ACTLR 215.
29In Atanackovic,[10] the offender was charged with possessing a marketable quantity of a border-controlled drug unlawfully imported and trafficking in a controlled drug. He had no relevant criminal history and excellent rehabilitation prospects, but his moral culpability was assessed as high. Limbs 5 and 6 of Verdins were engaged. He was sentenced to four years' imprisonment with a non-parole period of two years.
[10]Atanackovic v R (2015) 45 VR 179.
Gravity of Offending & Moral Culpability
30Your offending conduct is confined to a single date, save for the trespass.
31At the sentence indication, Mr Dunn submitted that you were a ‘warehouseman’, you received and stored the money merely. Ms Farrell submitted that there is no evidence upon which I could be satisfied of this role on the balance of probabilities. That is true.
32Ms Farrell noted the seriousness of Commonwealth drug offenders. In relation to the charge of dealing with money reasonably suspected of being the proceeds of crime, she submitted that the value of the money is the principal determinant in assessing the gravity of your offending. She cited the Court of Appeal case of Samarakoon as authority for that proposition.[11]
[11]Samarakoon v The Queen [2018] VSCA 119, [66]-[68].
33Mr Dann at your plea submitted that your moral culpability is limited due to your upbringing. Mr Keks disagreed. I will discuss this further shortly.
Prospects of Rehabilitation
34Mr Dann submitted that you have reasonable prospects of rehabilitation, citing your ability to overcome drug addiction for long periods. He conceded that you relapsed prior to your recent return to custody for unrelated charges.
35Mr Keks noted that, at the sentence indication hearing, it was submitted that you had completed your rehabilitation. He observed that your recent relapse had not been discussed. He argued that this may dim my assessment of your prospects for rehabilitation.
36Rehabilitation is rarely linear. You have demonstrated a capacity to abstain. You fell off the wagon again recently, but I accept that you have powerful pro-social supports in your mother, wife, and children, and a commitment to getting clean and staying clean. Your prospects are fair.
Guilty Plea
37You pleaded guilty to the charges against you, and you are entitled to a discount of your sentence as a result.
38Mr Dann submitted that your pleas were entered at a relatively early stage and that you have saved the time and expense of committal and trial proceedings. Mr Keks submitted that your pleas should not be afforded as much weight since they were not entered at the earliest reasonable opportunity. He noted the strength of the prosecution case and indicated that the plea could be considered a 'recognition of the inevitable', rather than a sign of genuine remorse.
39Pleas entered, even in the face of overwhelming prosecution cases, nonetheless attract a discount, acknowledging the administrative saving to the court. I accept that your pleas are reflective of your remorse. It is a routine experience in this court that trials are run in the face of very strong prosecutions. Although not entered at the earliest possible opportunity, your pleas dispensed with the need to conduct pre-trial argument and a potentially awkward series of trials. You are entitled to substantial credit to reflect that administrative saving.
Verdins
40Mr Dann relied on limbs 5 and 6 of Verdins and took the court to passages from the reports of Luke Armstrong, psychologist. Mr Armstrong believes that your personality disorder, coupled with your substance abuse disorder, would increase the burden of a prison sentence on you disproportionately to that of a prisoner of normal health.
41Mr Armstrong believes that people with your disorders are more likely to destabilise mentally in prison. You have a decreased ability to regulate your emotions. He also assessed that your mental state would unravel if you were incapable of providing your family with material and emotional support.
42Mr Keks conceded that limbs 5 and 6 of Verdins are enlivened. Your sentence will be discounted to reflect that any term imposed will weigh more heavily on you than on a person in normal health, and to acknowledge that there is a serious risk that imprisonment will have a significant adverse effect on your health.
Bugmy
43Mr Dann submitted that the principles in Bugmy are enlivened.[12] He focused on your disadvantaged childhood, particularly your relationship with your abusive father and your exposure to drugs and sex workers at an early age.
[12]Bugmy v The Queen [2013] HCA 37.
44Mr Keks argued that your disadvantage was generally known to the court at the time of the sentence indication hearing. He disputed that Bugmy has been engaged in your case so as to lower your moral culpability. He referred me to two cases.
45In Herrmann,[13] the Court of Appeal stressed the need for an evidentiary basis in considering an offender's disadvantaged background. The Court found that it may not always be possible to establish a connection between the offending and the offender's background circumstances.
[13]DPP v Herrmann [2021] VSCA 160, [44].
46In Terrick,[14] the Court of Appeal found that the weight given to an offender's disadvantaged background depends on:
(a)the nature and extent of the disadvantage;
(b)the nexus (if any) with the offending; and
(c)the (relative) importance in the particular case of sentencing considerations such as rehabilitation, deterrence (specific and general), community protection and social rehabilitation.
[14]DPP v Terrick (2009) 24 VR 457, [46].
47Mr Keks submitted that no evidence was tendered supporting a connection between your disadvantaged background and your offending. I do not agree. Mr Armstrong's reports were tendered by consent. He assessed you for five hours on 3 December 2024. He interviewed you again on 15 January and 4 March this year.
48You told Mr Armstrong that your father had a heavy cocaine habit in Sicily. You became aware of your father's drug use at the age of 12. You grew up believing your father's conduct was normal. You idolised him. He encouraged you to regard your mother with contempt. You describe periods of fighting and running away from home. You developed a contempt for authority which derives from your father. You began associating with a deviant peer group at high school. You experimented with drugs at the age of 12. When rifling through your father's bedroom you found a rock of cocaine. You crushed it up and had a line. You shared the remainder with friends. Your father confronted you, but did not disapprove.
49Your use of drugs dates from this period. Your exposure to drugs is tied to your father's dysfunctional life. Your conduct spiralled with the dissolution of your parents' relationship. You found a peer group of hardened users and you used daily. You trafficked cocaine and ecstasy and received a nine month term of YTC.
50In Bugmy, the High Court observed that:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender's deprived background in every sentencing decision.[15]
[15]Bugmy v The Queen [2013] HCA 37, [43] – [44].
51I distributed the case of McKee. In this case, the Court of Appeal said:
The extent to which a decision to experiment with drugs is freely made, in my view, bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs. Age is relevant to the question, as Spigelman, C.J acknowledged. I would add that in the case of adults, despair and low self-regard may also play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse.[16]
[16]R v McKee [2003] VSCA 16, [13].
52The history you provided Mr Armstrong has not been challenged. It provides a foundation for concluding that your father's influence on you has been powerfully damaging. Your exposure to his drug use normalised your own. Your use made you vulnerable to trafficking. Your moral culpability for this offending is reduced accordingly.
53Whilst Mr Keks is correct to say that generally your childhood and your father's oversized and damaging influence on you were known at the time of the sentence indication, counsel then disavowed reliance on Bugmy and my indication was not informed by its engagement in mitigation.
Family Hardship
54I am required to consider the probable effect that a prison term would have on your family or dependents.[17]
[17]Crimes Act 1914 (Cth), s 16A(2)(p).
55Mr Dann submitted that your family, including your mother, your brother, your son and your step-son, would be adversely affected if you received a custodial sentence. You play a significant supportive role in their lives.
56Mr Keks accepted that family hardship is engaged and exceptional hardship is not required.
57Mr Armstrong believes that you are motivated to undergo treatment. You are in what he calls a 'treatment window'.
58Mr Armstrong also conducted a psychological assessment of your mother, Concetta. He noted that she is emotionally dependent on you, due to the domestic violence she endured at the hands of your father. In his view, you and your mother will experience significant hardship if separated for any length of time.
59Mr Armstrong also assessed your ex‑partner, Brisa Cora, to determine the impact that a sentence of imprisonment may have on her and your son. She advised Mr Armstrong that you play a significant role in your son's life and Mr Armstrong determined that Ms Cora continues to depend on you. His opinion was that your absence will have a detrimental effect on the wellbeing of your son.
60Two character references were tendered. They also illuminate the impact a gaol term would have on your family.
61Your mother, Concetta, highlighted your work ethic and the support that you have provided her since your troubled childhood. She said that a custodial sentence would be 'absolutely crushing' and would have a significant impact on the family unit, since you are the main breadwinner. Your mother said that your family, including your mother, brother, children and step-son, rely heavily on you. She said that losing you would cause irreparable damage to your family.
62Your step-son wrote of the support you provide him and the impact that a custodial sentence would have on him and the rest of your family. Your step-son regards you as his father. After your divorce, your step-son experienced difficulties living with his mother and sought to live with you. You took him in, and he describes that he now has a sense of belonging. He spoke about how you not only provide financial and emotional support to him, but also to your extended family. Your step-son said that if you were to receive a gaol sentence, your family would 'lose the glue that holds us all together'.
Extra-curial punishment
63Mr Dunn and Mr Dann both submitted that you have been subjected to extra-curial punishment that warrants a reduction in sentence. I was referred to the case of Silvano, where extra-curial punishment was defined as follows:
Loss or detriment imposed on an offender by persons other than the sentencing court, for the purpose of punishing the offender for his offence or at least by reason of the offender having committed the offence.[18]
[18]Silvano v R [2008] NSWCCA 118, [29].
64It was submitted that you have experienced extra-curial punishment in the form of child custody arrangements. Following your arrest, you and your now ex-partner, Ms Cora, disagreed about your son’s custody. It was submitted that a gaol sentence would have a significant impact on future custody arrangements.
65In response, Ms Farrell submitted that losing custody of your son cannot be considered extra-curial punishment. She referred me to the case of RH, where it was noted that adverse consequences of one's offending should not be seen as extra-curial punishment unless it can be shown that it was causally related to the offending and was more than an ordinary incident or an inevitable consequence of the sentence imposed. [19]
[19]RH v R [2019] NSWCCA 64.
66I accept Ms Farrell's argument.
Parity
67Mr Dunn submitted that parity is a relevant consideration in circumstances where one of your co‑offenders relating to the trespass charge was sentenced in the Magistrate's Court to a fine. I have taken this into account.
Sentencing Principles
68Section 16A of the Crimes Act 1914 (Cth) sets out the matters to which the court must have regard when passing a sentence. In determining the sentence to be passed, the court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the case.
69I have also had regard to the principles set out in s 5 of the Sentencing Act1991 (Vic);
(a)To punish you in a manner and to an extent which is just in all of the circumstances;
(b)To deter you or others from committing similar offences in future;
(c)To facilitate rehabilitation;
(d)To manifest the denunciation of your conduct;
(e)To protect the community; or
(f)A combination of two or more of these purposes.
70Mr Dunn conceded that general and specific deterrence are important principles in relation to your charges.
Sentence
71Mr Cacopardo, please stand.
72On Charge 3, possession of a drug of dependence, you are convicted and sentenced to 3 months imprisonment.
73On Charge 1, trafficking in a controlled drug, you are convicted and sentenced to 24 months imprisonment, to be released forthwith on a recognisance release order to be of good behaviour for a period of 3 years and to pay a bond of $5,000.
74On Charge 2, dealing with property reasonably suspected of being the proceeds of crime, you are convicted and sentenced to 24 months imprisonment to be released forthwith on a recognisance release order to be of good behaviour for a period of 3 years and to pay a total bond of $5,000. This sentence is to be served concurrently with the sentence on Charge 1.
75Now you will need to sign the recognisance, Mr Cacopardo. I direct that your Commonwealth sentence is to commence upon the completion of your State sentence.
76On the summary charge of trespass, you are convicted and discharged.
77You have served 35 days by way of pre-sentence detention and that period is to be deducted from the sentence on Charge 3.
78The prosecution has sought a forfeiture order in relation to three sums of money totalling $261,995.30. The application is not opposed and I order that the items listed in the schedule of the order be forfeited in the manner prescribed.
79But for your pleas of guilty, I would have sentenced you to a sentence of 6 months imprisonment for Charge 3. I would have sentenced you to 3 years imprisonment for the Commonwealth offences, to be released on a recognisance release order for two years after having served 15 months. That sentence would have been ordered to commence at the end of the State sentence.
80Sorry, I have been corrected. It is 37 days of pre-sentence detention.
81VOICE (from body of Court): Yes.
82HIS HONOUR: Do the parties agree?
83MR KEKS: Yes, Your Honour.
84MR DANN: Your Honour, I was just going to ask you about that, as to how that was calculated because we had that issue where bail was revoked.
85HIS HONOUR: Yes.
86MR DANN: And the plea, and I just wasn't sure what date that started from, because there was some paperwork that had to be provided and so forth, so I just needed to know what date that be calculated to commence that?
87HIS HONOUR: Very well. Do we have the date?
88MR KEKS: Your Honour, I can indicate that 37 days is comprised of two days following initial arrest.
89MR DANN: Yes.
90MR KEKS: Followed by 35 days since the date of the order made by Your Honour revoking bail, which was 16 April.
91HIS HONOUR: Thank you.
92MR DANN: Thank you, Mr Keks. We accept that, Your Honour.
93HIS HONOUR: Thank you, Mr Dann. Very well, no further ancillary orders?
94MR KEKS: No, Your Honour. Can I raise one matter?
95HIS HONOUR: You can.
96MR KEKS: Which is that the way that Your Honour announced the sentence gave the impression that there may be two recognisance release orders. In fact there need only be one with ‑ ‑ ‑
97HIS HONOUR: Yes, there is.
98MR KEKS: Yes, both Commonwealth sentences.
99HIS HONOUR: Very well.
100MR KEKS: I understand that my instructor, if it would suit the court, can and hopefully already is draft a copy of the recognisance release order reflecting the conditions identified by Your Honour, and I'm hopeful that that could be provided very shortly.
101HIS HONOUR: Thank you, Mr Keks.
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