Director of Public Prosecutions v Accaputo

[2017] VCC 1722

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00863

DIRECTOR OF PUBLIC PROSECUTIONS

v

GESARIO ACCAPUTO

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 November 2017
CASE MAY BE CITED AS:	DPP v Accaputo
MEDIUM NEUTRAL CITATION:	[2017] VCC 1722

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr B. Stevens
For the Accused	Mr G. Vassis

HIS HONOUR:

1Gesario Accaputo, you have pleaded guilty to the following offences. 

·Between 29 September 2016 and 14 October 2016, trafficking in methylamphetamine contrary to s.302.4(1) of the Criminal Code.  The maximum penalty for this charge is ten years imprisonment.

·On 14 October 2016, possession of an unregistered handgun, contrary to s.7B(1) of the Firearms Act 1996 Victoria, and

·On 14 October 2016, possession of an unregistered handgun contrary to s.7B(1) of the Firearms Act 1996 Victoria. The maximum penalty for the second and third charges is seven years imprisonment.

2You admitted your criminal history.  Although your criminal history only starts in 2004, it is extensive.  Moreover, you were only released from prison six weeks before this offending commenced.  I shall return to the question of your prior criminal history later in these sentencing remarks.

3The Crown tendered the prosecution opening on the plea as Exhibit A.  A summary of your offending is as follows.  Your offending is alleged to have occurred over a period of approximately two weeks from 29 September 2016.  The Crown case for drug trafficking is based on intercepted telephone calls.  Some 6,300 communications were intercepted.  These communications were in the form of conversations, SMS, MMS and internet access searches.

4In that time, the police analysis of your communications reveals that you conducted some 26 transactions in that two week period, involving approximately 195.5 grams of methylamphetamines.  The total street value of the drugs transacted was approximately $75,800.  All of these figures were arrived at by an analysis of what was conveyed in the communications and not through observation or undercover participation in the transactions.  Nevertheless, it is pertinent that you did not dispute any of the matters put by the Crown in its opening before me.

5The detail of the communications reveals that you were involved in street level trafficking of amounts of methylamphetamines.  The communications were coded on one occasion.  Money to pay for drugs was paid to an ATM via a Commonwealth bank application.  Some of the communications intercepted by police referred to a .32 calibre Smith and Wesson revolver and ammunition and to a .45 calibre Colt handgun and ammunition.

6On your arrest on 14 October 2016, your co-offender Mayfield, was found in possession of a .32 calibre handgun which you admit was yours.  The serial number had been filed off this weapon.  Police then found a .45 calibre Colt Revolver, concealed in a roof cavity of the premises where you were arrested.  A quantity of ammunition capable of being fired from each of these weapons was found in a storage room at that premises.  Also on your arrest, you were found to be in possession of 1.7 grams of methylamphetamines.  It was submitted on your behalf that you were using methylamphetamines yourself at the time of your offending.

7I turn now to an analysis of your offending.  The offence of trafficking in methylamphetamines is a serious offence, notwithstanding you were trafficking at a street level and not in larger quantities.  The seriousness of your offence can be gaged from the frequency of the transactions you engaged in, the amount of drugs transacted and the money turned over.

8A trafficable quantity of methylamphetamines is two grams.  Your trafficking involved just under one hundred times the trafficable quantity.  A marketable quantity of the drug is 250 grams.  It therefore represents about two-thirds of the marketable quantity.  I must therefore conclude that you were trafficking at the high end of the trafficable quantity.

9Whilst it was submitted that you were not amassing wealth from your offending, there is no doubt that you were nevertheless trafficking in methylamphetamines for a profit.  That makes the objective gravity of the offence high.  Notwithstanding the submission that you were trafficking in order to support your own habit, the commercial nature of your activity is not mitigated by your own use of the drug.  Methylamphetamines is a pernicious drug.  Its use is prevalent.  Principles of general deterrence and denunciation must be given full weight. 

10Furthermore, as I have already mentioned, you had only been released from prison six weeks before you commenced trafficking in a drug.  It is apparent from the prosecution opening and from the observations I have already made, that you were trafficking with high frequency in the period observed by police.  Taking into account your very rapid return to criminal offending and your very many prior convictions for which you have served a number of periods of imprisonment, the sentence I impose must reflect a real measure of specific deterrence.  Your possession of two handguns is particularly worrying.  The guns were tested and both found to be operational.  There were twenty-five rounds available for use in the .32 calibre weapon and fourteen rounds with a .45 calibre weapon.

11It was submitted that your possession of the handguns was mitigated by the fact that there was no evidence that you were trafficking in weapons, or that you were specifically protecting your transactions through the use of weapons.  In fact, it was submitted that neither weapon was immediately available at the time of your arrest, as one was held in a satchel held by Mayfield, whilst the .45 calibre gun was stored in the roof cavity.  I do not place much weight on this submission.  In my view, the community must be protected from those who engage in drug trafficking and those who unlawfully possess handguns.  In summary, the objective gravity of your offending and your moral culpability is very high. 

12I turn now to your personal circumstances.  You are 39 years of age and you were in April 1978.  You are the middle child of three boys.  Your mother and your aunt were present in court to support you.  Your father would have been present, but he is suffering from grave ill health.  He suffered a complication in an operation he underwent in early October and was still in hospital on the date of the plea.  I was told that both your brothers are in gaol.  You are close to your younger brother, but not to your older brother.

13You come from a strong family and you had a good stable childhood.  After you completed school, you worked for Qantas as a baggage handler and then as a cleaner and then in customer service.  You undertook cabin crew training, but you were ultimately unsuccessful.  At the embarrassment you felt, you left Qantas and started work with your father in his Lygon Street restaurant.

14After four years, where you contributed to the business rather than drawing a regular wage, you moved onto work as a concreter.  Your father operated a pizza shop called "Victoria Pizza".  It was essentially run by your younger brother.  Again, you worked for your younger brother in the family business, helping out, but not drawing a regular wage.  From the age of about 18 or 19, through to 26, you were extremely successful in the sport of Taekwondo.  You participated in state and national teams and tried to qualify for the Australian Olympic team.  Your commitment was almost fulltime.  You were training six to seven days a week. 

15In 2003 or 2004, you missed out on selection for the Olympic team.  With that, you turned your back on the sport and started to enjoy the party scene, nightclubs and began to use drugs.  You then descended to the use of methylamphetamines.  From your mid-teens, you had been in a stable relationship with a young woman called Simone.  The relationship lasted until 2016.  In the course of that relationship and whilst you were working for Qantas and training at your chosen sport, you were also financially successful.  Before you descended into drug use, you and your partner owned a block of land and then bought a house and land package.  Simone stayed with you through much of your criminal offending and periods of imprisonment.

16It appears however, that you must have lost contact with her for a considerable period of time because when you were released from prison in August 2016, you learnt that she had re-partnered and had given birth to twins.  I will turn to the effect that this had on you in a moment.  However, I note at this time that not only was your relationship lost, but all of the financial wealth and stability that you had built was lost through your drug use, criminal offending and periods in prison.

17You turned to drugs relatively late in life.  As I stated earlier, your prior convictions date back to July 2004.  Since that time, you have made fourteen separate appearances in court and you have faced dozens of charges, largely for dishonesty offences, but also for possession of drugs, driving offences and a number of assault related offences.  You have been sentenced to numerous periods of imprisonment.  As I have already mentioned, I was told that you had only been released from your latest period of imprisonment in 2016, when you committed these offences.

18In addition to periods of imprisonment, you have been given numerous opportunities to complete programs and sentences in the community.  In 2004, you were placed on a suspended sentence.  You were breached on that in 2006.  In 2006, you were placed on an intensive corrections order.  You breached that order later in the same year.  In 2010, you were placed on a further suspended sentence and also a community based order.  You breached both of those orders in 2013.  In addition, the assessment report for the Community Corrections Office dated 16 October 2017, notes that a parole order was cancelled in 2007, but you completed a parole order in 2010.  The report states, "Records indicate that during all these orders, Mr Accaputo appears to have further offended".

19As I have already stated, I was told on your plea that you were imprisoned until August 2016.  Your father was already in ill health and has suffered from cancer for some time.  When you were imprisoned on the last occasion, you were concerned about the effect of your imprisonment on your parents.  Your parents have sold up their businesses.

20With the news that your ex-wife had re-partnered and with the news of your parents plight, you are suffering from severe mood swings and unexplained belts of crying upon your release from prison.  You were medicated, but the medication had bad side effects.  I note at this point you are concerned also about your own health.  You are presently medicated for a colorectal complaint and you are awaiting a colonoscopy. 

21Mr Patton submitted on your behalf that you turned to drug trafficking as you were concerned to provide for your own habit and to provide yourself with a stable residential address.  Apparently you have had difficulty obtaining parole because you have not been able to provide a stable residential address.  You stated that you did not want to live with other drug users and that you did not want to return to offences of dishonesty. 

22Accordingly, for reasons of supporting your own habit and to provide this residential stability, you turned to drug trafficking.  You were arrested on
14 October 2016 and have been in custody since that date. You have now served 399 days of pre-sentence detention, excluding today.

23It was submitted that your trafficking was own use trafficking and not much above street level.  I disagree with this categorisation of your conduct, nor am I persuaded by the explanation offered.  A turnover of approximately $37,000 a week, with concurrent possession of guns and ammunition within six to eight weeks of release from prison, cannot be described as own use trafficking.  This is all the more so when one pauses to consider for a moment, the level and intensity of communications intercepted by the police in this brief period.

24Mr Patton submitted the following matters to mitigate your sentence.  First, the plea of guilty. Although not made at an early stage, came after negotiations because you originally face more significant charges.  As such, the plea should be given full utilitarian benefit and should be taken to facilitate the course of justice.  I consider that the plea in this case does have utilitarian benefit and that I should take it into account in mitigating the sentence I impose upon you. 

25Second, Mr Patton submitted that you have reasonable prospects for rehabilitation.  Your earlier life shows that you have previously displayed considerable reserves of discipline and financial acumen.  On top of this, you have strong family support as demonstrated by the presence of your mother and aunt in court.

26Finally, this respect, Mr Patton tendered in evidence the Assay results, showing that you have remained drug free whilst in prison and the letter from Pro-Tilt Constructions offering you re-employment upon your release from prison.  I will return to the question of your prospects for rehabilitation in a few moments.

27In the circumstances, it was submitted by Mr Patton that you should be sentenced on the Commonwealth matter to a term of imprisonment and then on the state matters, to a term of imprisonment in combination with a community corrections order.  It was noted that each of these matters could have been dealt with summarily, thereby implying that the sentence I impose should be considerably moderated to take account of that.  The Commonwealth DPP did not oppose this submission. 

28Both parties supplied supplementary submissions on sentence.  In effect, Mr Patton submitted that in accordance with the principles enunciated in Younger v R (2017) VSCA 199 at paragraphs 59 to 66, I could impose a combination sentence for a period of imprisonment with a community corrections order.

29This was possible because notwithstanding the length of pre-sentence detention you have already served, the term of imprisonment maybe imposed in combination with a community corrections order is measured after pre-sentence detention is deducted.  See paragraph 64 of that decision.

30You were assessed for your suitability for a community corrections order on
16 October 2017.  You were assessed as suitable, notwithstanding the Community Corrections Office noted your previous contraventions.  The question remains whether such a course is appropriate in the circumstances of the case.

31Section 44 of the Sentencing Act provides that when sentencing an offender in respect of one or more than one offence, a combination sentence of imprisonment and a community corrections order can be imposed if the sum of all the terms of imprisonment to be served is twelve months or less.  After giving the matter careful consideration, I do not consider that this course can satisfy the principles of general deterrence, denunciation and protection of the community.

32In other words, I consider that your overall offending is far too serious. Further, given your prior criminal history and your constant history of non-compliance, I have no confidence that you would comply with such an order. In determining the appropriate sentence to be imposed in this case, I am obliged to have regard to the general sentencing principles set out in s.16A Crimes Act 1914, in relation to the Commonwealth charge and to the purposes for which a sentence must be imposed set out in s.5 Sentencing Act 1991 Victoria. In addition, I was provided with a set of comparable cases.

33It was apparent from the exchange I had with the prosecutor in court, on the plea, that those cases were not helpful in this exercise.  In future, prosecutors should only hand up comparable cases, if there is a point of principle or a comparator contained in them.  To this point, I have no material before me, upon which I may be satisfied that you have started on the road to rehabilitation.  In fact, given your history and the circumstances in which this offending occurred, I consider your prospects for rehabilitation are poor.  In the circumstances, I consider that the sentences I impose should provide you with the opportunity for parole. If I could ask you to stand please at this point
Mr Accaputo.

34On Charge 1, the trafficking charge, you are convicted and sentenced to a term of 24 months imprisonment.  This is the Commonwealth charge.  This sentence commences today.  I direct that you are to be released under a recognisance release order, after you have served twenty-two months of that sentence.

35On Charge 2, that is the state charge of unregistered possession of a handgun, you are convicted and sentenced to eighteen months imprisonment.  I direct that this sentence commence nine months after the commencement of the sentence on Charge 1. 

36On Charge 3, the state charge of unregistered possession of a handgun, you are convicted and sentenced to eighteen months imprisonment.  I direct that this sentence commence twelve months after the commencement of the sentence on Charge 1.  This means that three months of Charge 3 is to be served cumulatively on Charge 2.  This makes for a total effective state sentence of twenty-one months.  I impose a non-parole period in relation to the state sentence of thirteen months. 

37Mr Accaputo, this results in a combined total effective sentence across all three charges of thirty months.  Your combined minimum term across all three charges is twenty-two months.  I declare the period of 399 days pre-sentence detention, excluding today, reckoned as already served.  Now with that, I am just going to ask you to take a seat for a moment and I am going to give the Crown and your solicitor Mr Vassis time to check the figures on the sentence, to make sure that the structure of the state sentence to the Commonwealth sentence is correct.  Then I am going to ask the Commonwealth to prepare the recognisance release order for the Commonwealth charge.

38MR STEVENS:  Your Honour, I've prepared the recognisance release order for Your Honour's consideration.

39HIS HONOUR:  Yes.

40MR STEVENS: There's just two matters outstanding, one being the recognisance amount. 

41HIS HONOUR:  Five hundred dollars.

42MR STEVENS:  Five hundred dollars and also the period of good behaviour.

43HIS HONOUR:  The period of good behaviour is twelve months.

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