Director of Public Prosecutions (Cth) v Perre

[2021] VCC 928

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01350

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

FRANCESCO PERRE

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JUDGE:	HIS HONOUR JUDGE TRAPNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	6 July 2021
DATE OF SENTENCE:	6 July 2021
CASE MAY BE CITED AS:	DPP (Cth) v Perre
MEDIUM NEUTRAL CITATION:	[2021] VCC 928

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW – SENTENCE

Catchwords:             Possessing controlled drug, methamphetamine – Taking other offence into account – Early plea of guilty – Good education – Excellent employment history – Co-operative with police – Lack of true contrition and remorse – No prior convictions – Good prospects of rehabilitation – Specific deterrence not of particular relevance – Protection of the community not of particular relevance – Delay in prosecution – Effects of COVID-19 pandemic

Legislation Cited:     Criminal Code (Cth) – Crimes Act 1914 (Cth)

Cases Cited:Rodriguez v DPP (Cth) (2013) 40 VR 436 – R v Pham (2015) 256 CLR 550 – R v Kilic (2016) 259 CLR 256 – DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428

Sentence:Convicted and fined $2000.00

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms K Breckweg	Mr S Bruckard, Acting Commonwealth Solicitor of Public Prosecutions
For the Accused	Mr A Dickenson	Giorgianni & Liang Lawyers

HIS HONOUR:

1 Francesco Perre, you have pleaded guilty to an indictment containing one charge of possessing a controlled drug contrary to subsection 308.1(1) of the Criminal Code (Cth) (‘the Code’). This charge relates to the drug methamphetamine, which it is accepted by the Commonwealth Director you possessed for your own use.

2 Moreover, I am satisfied there has been filed in Court a document in, or to the effect of, the form prescribed for the purposed of s 16BA of the Crimes Act 1914 (Cth) (‘the Act’) which lists a further charge of possessing controlled drugs contrary to subsection 308.1(1) of the Code. This charge relates to the drug cannabis, which it is also accepted by the Commonwealth Director you possessed for your own use.

3      You have admitted your guilt to this offence before me and indicated your wish that this offence be taken into account by me in passing sentence on you for the offence charged on the indictment. The prosecutor has consented to me so doing, and in all the circumstances I consider it is proper to do so. Following sentence, I will sign a certificate to that effect.

4 The maximum penalty for possessing a controlled drug contrary to subsection 308.1(1) of the Code is two years’ imprisonment and/or a fine of 400 penalty units, which at the time of committing the offence was equivalent to $72,000.

The Facts

5      The prosecution filed a prosecution opening for plea which I am told by your counsel I can treat as a statement of agreed facts.[1]  

[1]     Exhibit D1.

6      On 6 March 2018, members of the Australian Federal Police (‘AFP’) executed a search warrant at your home in Lackenheath Drive, Tullamarine. At the time of the search, two cars were parked in the driveway, a Fiat and a Ford Falcon, both registered in the you wife’s name.

7      During the search AFP members located the following items:

(a)  Green vegetable matter in a zip lock bag located within a lunchbox, on a shelf in a second garage at the rear of the property.

(b)  A Louis Vuitton bag in the footwell of the Ford Falcon which contained some foil packages, a clear zip lock bag, a cigarette box and a white envelope with further foil packages. Each of those items contained a white crystalline substance. There was also a broken glass pipe within the Louis Vuitton bag.

8      Subsequent forensic analysis of the substances found during the execution of the warrant established the white crystalline substances in the Louis Vuitton bag contained 17.5 grams of methamphetamine. The purity was approximately 80%, meaning the total pure weight of the methamphetamine was 14.5 grams. The green vegetable matter found in the lunchbox comprised 9.9 grams of cannabis.

9      A traffickable quantity of the controlled drug, cannabis, is 250 grams and a traffickable quantity of the controlled drug, methamphetamine, is two grams. There is no charge before me in relation to you trafficking in either drug.

Offence Seriousness

10 Possessing controlled drugs contrary to subsection 308.1(1) of the Code is a moderately serious offence, punishable by up to two years’ imprisonment.

11    If there were no users of these illicit drugs, there would be no market and the nefarious trade in controlled drugs would cease overnight. These drugs are a scourge on our society and cause enormous harm, particular to young people. This is why general deterrence is the paramount sentencing consideration and factors personal to you are usually afforded less weight than they might otherwise be given.[2]

[2]     R v Nguyen and Pham (2010) 205 A Crim R 106, 126–8 [72] (Johnson J, Macfarlan JA and RA Hulme J agreeing). See also DPP v Thomas; DPP v Wu (2016) 53 VR 546, 612–3 [192]–[193] (Redlich, Santamaria and McLeish JJA).

Personal Circumstances

12    Your personal circumstances are set out in the defence brief outline of submissions filed by your counsel.

13    You are 32 years old and were aged 29 at the time of the offending. You were born in Australia and come from a settled family background.

14    You were married in 2013 and have two children, two daughters aged 5 and 2 years. You and your wife separated in January 2020 and your wife moved to regional NSW with your children. You maintain a relationship with your daughters despite some difficulties.

15    You rented a property in early or mid-2020, but now live with your parents.

16    You received a good education at St Christopher’s primary school and the Catholic Regional College in North Keilor, where you successfully completed Year 12 studies.

17    You have an excellent employment history in information technology and computer programming from when you left school until mid-2011. You then undertook a pre-apprenticeship course at RMIT before commencing an electrical apprenticeship at Aardvark Electrical Solutions in 2012 and Excell Electrical Engineers Pty Ltd until 2016.

18    You are now a qualified electrician and perform electrical maintenance work at a cleaning company. You also completed renovations on the house you jointly owned at the time of committing this offence. With COVID-19 and your strict bail reporting conditions you have found it difficult to maintain employment and you have been on the JobSeeker allowance from 2019 until now.

19    I was told by your counsel you began using methamphetamine in 2017 for ‘recreational’ purposes. Before then, you had no drug issues.

Mitigating Circumstances

20    You pleaded guilty to this offence at the earliest forensically reasonable opportunity.[3] I accept your pleas have significant utilitarian benefit, particularly in the COVID-19 environment. The pleas also indicate your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice.

[3]     See Atholwood v The Queen (1999) 109 A Crim 465, 468 (Ipp J); Cameron v The Queen (2002) 209 CLR 339, 345–6 [20]–[22] (Gaudron, Gummow and Callinan JJ).

21    You were co-operative with the AFP members who searched your home. You provided the PIN for your mobile phone and the password to your computer. You also took police to a storage unit you rented.

22    While I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had, and will continue to have, on you, there is insufficient evidence before me to make a finding in your favour that you demonstrate true contrition and remorse for your offending conduct, beyond what is evident from the plea itself.[4]

[4]     See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).

23    You have no prior convictions or findings of guilt and you have no matters outstanding or pending. I sentence you on the basis you are a person of otherwise good character.

24    I find you have very good prospects of rehabilitation given your prior good character, your excellent work history and you have family support.

25    I do not accept the prosecution’s submission that I should give ‘some’ weight to specific deterrence or protection of the community in sentencing you for this offence.

26    The effect of delay is a mitigating circumstance in your case. It is now exactly three years and four months since you were arrested and charged on 6 March 2018.

27    There will always be some delay in prosecuting cases of this kind but here there has been more than the usual delay which was mostly beyond your control.

28    The law recognises ‘delay is more likely to be a major mitigatory factor where the prosecution or the justice system is responsible for the delay’.[5] As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[6]

Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[7]

[5]     Judicial College of Victoria, Victorian Sentencing Manual, online, page 142 [7.5.3.2].

[6] (2013) 40 VR 436.

[7] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).

29    So far as your rehabilitation during the period of delay is concerned, it is to your credit that you have remained offence free. It is crucial to your future prospects of rehabilitation that you remain drug free.

30    So far as delay akin to punishment is concerned, since you were arrested and charged in relation to these offences you have had the prospect of a sentence of imprisonment hanging over your head. Undoubtedly, this would have caused you significant stress and anxiety. You have also been subject to fairly onerous bail conditions during this period, including daily reporting, a curfew and restrictions on your mobile phone and internet use. I take these effects of delay into account in your favour.

31    The effects of the COVID-19 pandemic are relevant to sentencing because:

(a)    An offender is a higher risk of contracting COVID–19 if they are incarcerated (presuming an outbreak in custody).[8]

[8]     The Queen v Madex [2020] VSC 145 [52].

(b)     The inherent utilitarian value of a guilty plea is greater during the pandemic.[9]

(c)     The pandemic is causing additional stress and concern for those incarcerated and their families, as it is for every member of the community.[10]

(d)     The pandemic can impact on visits, work and educational opportunities, depending on the number of cases of COVID-19 in the community at any given time.

[9]     DPP v Bourke [2020] VSC 130 [32].

[10]    Glen Brown v The Queen [2020] VSCA 60 [48].

Application of Sentencing Principles

32 I must sentence you in accordance with the relevant provisions of Part 1B of the Act and, in particular, the provisions of s 16A.

33 Pursuant to s 16A(1) of the Act, I must impose a sentence that is of a severity appropriate in all the circumstances of the offence. In determining the appropriate sentence, I must have regard to the matters set out in s 16A(2) of the Act, and any other matters, insofar as they are relevant and known to me.

34 Section 17A(1) of the Act provides that I shall not pass a sentence of imprisonment on you for these offences unless, having considered all of the available sentences, I am satisfied no other sentence is appropriate in the circumstances.[11]

[11]    Similarly, see Sentencing Act 1991 (Vic) ss 5(3).

35    I have had regard to recent current sentencing practice for the offence before me as informed by the decisions of the High Court in R v Pham,[12] R v Kilic[13] and DPP (Vic) v Dalgliesh (a pseudonym).[14] While current sentencing practice is relevant to the sentence I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing a just sentence in your case.[15]

[12] (2015) 256 CLR 550.

[13] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).

[14] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).

[15]    See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.

36    Moreover, it is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offence before me and the myriad of personal circumstances pertaining to individual offenders.

37    The basic purposes for which a court may impose a sentence are just punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it and your personal circumstances.

38    I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.

39    General deterrence and denunciation of your conduct must be of primary importance in sentencing you for this offence. Specific deterrence and protection of the community need be given little, if any, weight. I assess your prospects of rehabilitation as being very good.

40    I consider a sentence involving a fine with conviction is appropriate to achieve the purposes for which this sentence is imposed.[16] Contrary to the Commonwealth Director’s submission, I do not consider a community correction order is appropriate in your case.

[16]    See Sentencing Act 1991, s. 5(4).

Stand up Mr Perre.

On the charge of possessing a controlled drug contrary to subsection 308.1(1) of the Code you are convicted and sentenced to pay a fine of $2000.00 to the Commonwealth Director of Public Prosecutions.

Pursuant to s 6AAA of the Sentencing Act 1991, I state that the sentence I would have imposed on you but for your plea of guilty would have been a conviction and fine in the sum of $4000.00.