Director of Public Prosecutions v Acciarito

[2018] VCC 1603

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01239

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARIO ACCIARITO

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2018
DATE OF SENTENCE:	1 October 2018
CASE MAY BE CITED AS:	DPP v Acciarito
MEDIUM NEUTRAL CITATION:	[2018] VCC 1603

REASONS FOR SENTENCE
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CRIMINAL LAW – Sentence – resisting an emergency worker on duty – prohibited person possessing firearm – dealing proceeds of crime – trafficking drug of dependence – summary charge of possess prohibited weapon without exemption – significant steps towards rehabilitation – relevant criminal history.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Coombes (Plea) Ms I. Siriwardana (Sentence)	Solicitor for the Office of Public Prosecutions
For the Accused	Mr P. Dunn QC (Plea) Mr D. Cole (Sentence)	Dean Cole and Associates

HIS HONOUR: 

1Mario Acciarito, you have pleaded guilty to one count of resisting an emergency worker on duty, maximum penalty of five years' imprisonment; prohibited person possessing a firearm, maximum penalty ten years' imprisonment; negligently dealing with the proceeds of crime, maximum penalty five years imprisonment; trafficking in a drug of dependence, maximum penalty 15 years' imprisonment; and an uplifted summary offence of possessing a prohibited weapon without exemption, maximum penalty two years' imprisonment.

2The circumstances of the offending were set out in the prosecution opening, Exhibit A, which was read in open court on the plea.  In essence, on 11 August 2016, the police observed you near a Mercedes sedan in Fitzroy speaking to another person driving a Saab outside a 7-Eleven. 

3You then left in your Mercedes, headed up towards Brunswick.  The Mercedes was registered to a person who had an address in Rye.  Police followed you; they formed the view that you were attempting to evade them. 
They then intercepted you further up in Northcote and then when they stopped you, you got out of the car.  They located in the driver's pocket a deal bag containing a white crystal substance.

4You were asked about that and then at that stage, you then were told you were under arrest and asked to empty your pockets and then you sought to run off.  Police caught you, brought you to the ground and handcuffed you. 
You kept resisting them and then as they were manhandling you, they found that you were carrying a loaded firearm in your waistband.

5You kept resisting them until they got the cuffs on you and they had to in fact use OC spray to subdue you.  You were found to be in possession in three different packets in your pockets, and your jackets and jeans, the sum $7,885 dollars in cash which was the charge of negligently dealing with the proceeds of crime.

6When they searched through your pockets they found a vacuum sealed bag containing ten smaller deal bags containing a white substance, the total amount of methyl amphetamine was 18.6 grams; the purity of one of the items was
25 percent and the balance was between 82 and 83 percent.  At your home, they found a laser which is the summary offence for which you pleaded guilty.

7Before turning to characterise the seriousness of the offending, I must refer to your prior convictions.  You are now aged 47, having been born in 1971.  Your first prior conviction against you was in the Magistrates' Court in 1997 when you were fined for being in a gaming house and gaming in public.  Your next conviction was in March 2004 where on offences on burglary, theft, and possessing methyl amphetamine, you were placed on a six month community based order.

8On 25 May 2004, on offences of possessing methyl amphetamine, and handling stolen goods, four counts, you were placed on a 12 month community based order.  On 11 September 2007, when that order had expired you were found to have breached the order but no action was taken.  On 29 September 2004, on charges of retaining stolen goods, two charges; handling stolen goods, three charges; possessing methyl amphetamine and dealing with the proceeds of crime, you were sentenced to five months' imprisonment to be served by way of an intensive corrections order.

9On 7 June 2007, before this court on one charge of attempting to possess a prohibited import, namely ecstasy, you were sentenced to six years' imprisonment with a non-parole period of four years with 444 days pre-sentence detention declared.  On 4 October 2007, on one charge of possessing a prohibited weapon, you were sentenced to seven days imprisonment. 

10On 22 November 2007, on a charge of being a prohibited person in possession of a firearm, you were sentenced to 219 days' imprisonment.  On the same day, on two charges of handling or receiving stolen goods, you were sentenced to four months and three months' imprisonment respectively, concurrent with the earlier sentence of 219 days.

11The sentencing remarks of the Court in relation to your firearms offence and your attempt to possess a prohibited import were available to the court. 
You have a significant criminal record relating to drugs, dishonesty and firearms.  Your record involves two charges of either possessing methyl amphetamine or amphetamine, and 14 charges of various types of dishonesty.  You have been sentenced to imprisonment on four occasions. 
Most significantly, you have a prior conviction for possessing a prohibited weapon and a prior conviction for being a prohibited person in possession of a firearm.  The circumstances of that offence were elaborated in the sentencing remarks which indicated that you were found in possession of a .22 self-loading pistol at your premises.

12As I have indicated, you were also sentenced for your involvement in a major drug importation.  The sentencing remarks indicated that you had a lesser but important role in the attempted importation which was to be worth millions of dollars but you were still sentenced to a very significant term of imprisonment.

13The sentencing remarks indicate that you were to be eligible to be released on parole in April 2011, with the sentence to expire in April 2013.  This offending therefore occurred about three and a half years after concluding your last sentence of imprisonment.

14Your prior convictions and appearances for drug offending, dishonesty offending and weapons offences are very relevant to your moral culpability for this offending.

Seriousness of the offending 

15As I have indicated, your prior convictions are relevant to your moral culpability.  Possession of a loaded concealable firearm is conduct that reeks of premeditation, particularly in circumstances where I am satisfied you were involved in a drug trafficking as a principal, as you have admitted by your plea and by your possession of methyl amphetamine in deal bags.

16A firearm is an accoutrement of a drug trafficker.  You were found in possession of a significant quantity of methyl amphetamine, with the various deal bags in your possession.  In addition, you were found in possession of a significant amount of cash.  The only inferences available is that when you were apprehended by the police, you were an armed drug trafficker.  You were trafficking in a dangerous drug that is wreaking havoc through the community.

17With your prior convictions for similar offending, you bear a high degree of moral culpability for this offending.  Your possession of the loaded firearm in these circumstances is very serious.  It is one thing to be in possession of a firearm in a bedroom, it is another, different and quite far more serious matter to be in possession of a loaded firearm in circumstances where you are engaged in drug trafficking in a public place in possession of a large sum of cash.  Being later found in possession of a laser, another controlled weapon, again is serious given your antecedents.  Overall, this is very serious offending, especially given your prior convictions. 

Personal circumstances

18I turn to your personal circumstances, which were outlined in a comprehensive plea and in your counsel's sentencing submissions.  Your counsel put that your life can be divided into three phases.  In the first phase, up until you were in your 30s, you had successfully achieved Year 12, left school, joined the public service, purchased a house and married and had two children.

19You had been brought up by your father and your grandparents after your mother left the marriage early in the piece.  Overall, until you were in your early 30s, you have been a successful law-abiding member of the community. 
Then when your marriage began to break down, you struggled and left your employment.  You then began dabbling in drugs and mixing with the wrong crowd.  This led to your convictions for drug and dishonesty offences and to significant terms of imprisonment, and particularly the sentence for your involvement in the attempted importation of a multi-million dollar ecstasy shipment. 

20You successfully completed a two year parole period after your release from prison in April 2011.  After this period, you were working in a coffee shop; you had lost your grandmother and again you started to reuse drugs and get into bad company.  It was in this context that this offending was committed. 

21A major feature of the plea and your third phase in your life is your attempts at rehabilitation since your arrest.  After 65 days in prison on remand, you were bailed to a rehabilitation facility known as Arrow Health which is in country Victoria.  You were there for a period of three months.

22On the plea, evidence was given by Mr Tzonis, a rehabilitation clinician at that facility which indicated you had made very significant progress in addressing your drug use.  After three months at the country facility, you then spent four months odd at another facility operated by the same organisation in suburban Melbourne.

23In the latter facility, you were acting as a mentor to other persons in the rehabilitation facility.  Since you have left that facility, you are still involved in Narcotics Anonymous and engage with a counsellor and have been submitting clean drug screens.

24The evidence from Ms Delhina indicates that you have been a good role model in that facility.  She regards your prospects of rehabilitation as good but concedes that often offenders do relapse when they are on a path to rehabilitation.

25Evidence was also led from Mr Paul Calitow who has successfully completed the Arrow program and he has met in that context.  He has established a small business that is offering employment to those who have been in trouble with drugs from the program.  He has been engaging with you and is prepared to do so in the future and has been assisting in your rehabilitation progress and you have been engaging in employment with him.

26I take all this evidence into account and the other supporting references that were provided.  Your efforts must, however, be weighed against the countervailing considerations in sentencing you. 

Other mitigating matters

27In a comprehensive plea, your counsel focused on your early plea of guilty, your strong family support that was evidenced on the plea by the members of the family supporting you and your partner, and the fact that you have two teenage boys who are in the custody of your ex-wife but you are engaged with them on a regular basis. 

28I give you credit for an early plea of guilty.  This was offered at the Magistrates' Court as you sought to have the matter dealt with summarily.  There were also negotiations with the prosecution as to the nature of the drugs charge.  This led to some delay for the matter to finally arrive in this court.  You have used the period of delay for your rehabilitation and you had the matter hanging over your head for that period.  I give that some weight.

29I also take into account the strong family support.  Overall, I regard you as having reasonable prospects of rehabilitation.  You have failed once in rehabilitation after your 2007 sentence.  In the period that you have been on bail, you have apparently relapsed on one occasion and you are yet to face court for a drug driving related matter.

Sentencing submissions 

30Your counsel did not dispute the seriousness of the offending here.  The main thrust of the plea was that given the steps that you had taken in relation to your rehabilitation, reclamation from drug use, it would be in the community's interest that this path of rehabilitation not be impaired but rather enhanced by any sentence. 

31On that basis, he sought a combination sentence of a sentence of imprisonment followed by a community corrections order.  The learned Crown prosecutor submitted, however, that the offending was of such seriousness that a combination was not within range. 

32In support of your counsel's submission, I was referred to a number of cases where in relation to offending involving possession of illegal firearms, non-custodial or combination sentences were imposed.  Each of the cases has distinguishing features. 

33In DPP v Gray [2018] VCC 1273, the firearms charge was not one involved with other offending.  This makes that sentence distinguishable.  There is a similarity, however, in that the court did give credit for a period in rehabilitation facility.  I was urged to do that and I will do that.

34In the case of DPP v Djokic [2018] VCC 1008, again the firearms charges involved a person being found in possession of those firearms but not in active drug trafficking enterprise, which is here, as distinct from an enterprise involving manufacturing of drugs.  The judge found strong moderating factors including the prior convictions were less serious and there was substantial rehabilitation and a community corrections order was imposed.

35In the case of DPP v Bosa [2018] VCC 376, the charge was possessing an unregistered handgun and firearm without a serial number.  A term of six months' imprisonment as an aggregate sentence was imposed.  The possession of the firearms charges involved them being found in a bedroom when the police raided the premises.  Drugs were also on the premises.  The offender was much younger than you.  The appeal against sentence was dismissed with the Court noting that to some minds the sentence might appear lenient. 

36Overall, I have not found the cases that I was referred to as of much assistance in identifying a current sentencing practice for your offending. In any event, current sentencing practices is only one of a number of matters that must be considered under the Sentencing Act and is not determinative. 

37I regard the most salient matters here is that you have a direct prior conviction for a similar offence.  Under the legislation, when you have been sentenced to a term of imprisonment of more than five years, you remain a prohibited person for 15 years in relation to firearms.  You were only three and a half years into that period when for a second time you were found, and in this case you were carrying, a loaded firearm.

38In recent times, the courts have stressed the importance of sentencing courts having regard to maximum penalty for an offence.  Here, the maximum penalty is ten years' imprisonment.  Further, there is always concern in the community as to illegal firearms.  Sentences must send a signal that possession of illegal firearms will be met with heavy penalties.

39As I have indicated in this particular case, you were carrying a loaded firearm in circumstances where, on your own admission, you were engaged in other criminal activity.  This enhances your moral culpability.

40As I have indicated, you prior convictions also enhance your moral culpability and raise considerations of general deterrence, denunciation, specific deterrence and protection of the community as salient considerations in relation to the firearms offence alone.

41Turning to the drug trafficking offence, as I have indicated drug trafficking is a scourge in the community and the appeal courts have indicated that heavy sentences must be imposed on those involved in drug trafficking at whatever level. 

42You have a major prior conviction for involvement in the drug industry.  This raises your moral culpability for the drug trafficking notwithstanding that the amount involved was relatively small.  But again, regard must be had to the 15 year maximum penalty.

43In relation to negligently handling the proceeds of crime, as I have indicated you had 14 prior convictions for offences of dishonesty and you have been sentenced to terms of imprisonment for that conduct.  This makes specific deterrence an important consideration in relation to the sentence for this offence. 

44The offence of resisting an emergency worker, namely the two police officer is at a lower level.  However, general deterrence is an important consideration and emergency workers must be protected by the courts in carrying out their duties. 

45The offence relating to the laser is of a lower level of seriousness but they are an item that can be a danger to aircraft and indeed to other individuals and thus sentences must reflect considerations of general deterrence.

Purposes of sentencing

46I turn to the purposes of sentencing.  The basis purposes for which a court may impose a sentence are 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 offences, your culpability for them, your personal circumstances and those of the victim, if any. 

47I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible, offenders are rehabilitated and reintegrated into society.

48I have considered your counsel's submissions that a combination sentence should be imposed and had you assessed for a community corrections order.  They assessed you as having a high risk of reoffending.  On reflection, I have considered that the seriousness of the offending is well beyond making a combination sentence within range. 

49The efforts that you have taken in relation to rehabilitation are relevant and you are to be commended for them.  At the same time, as I have indicated protection of the community, specific deterrence, denunciation and general deterrence outweigh to a large extent the matters personal to you in your efforts at rehabilitation.

50I was referred to the decisions in Akoka v The Queen [2017] VSCA 214 where the Court endorsed and allowance being made for periods that an offender was involved in a rehabilitation facility. I do not regard it as appropriate to apply an exact equivalence between a sentence of imprisonment and the seven odd months that you were in the Arrow Health facility. I have, however, taken it into account in a general way in relation to the cumulation orders that I have made in this matter.

51I have also sought to reflect your efforts at rehabilitation in the non-parole period that I have fixed in this matter.

52On the charge of resisting an emergency worker on duty, you are sentenced to three months' imprisonment.

53On the charge of being a prohibited person in possession of a firearm, you are sentenced to four years imprisonment.  That is the base sentence.

54On the charge of negligently dealing with the proceeds of crime, you are sentenced to 15 months' imprisonment. 

55On the charge of trafficking in a drug of dependence, you are sentenced to three years' imprisonment. 

56On the summary charge of possessing a prohibited weapon, you are sentenced to six months' imprisonment.

57I order that 18 months of the sentence on trafficking a drug of dependence be served cumulatively on the base sentence making a total effective sentence of five and a half years' imprisonment.  The sentences are otherwise concurrent. 

58I order that you serve a minimum of three years and four months' imprisonment before being eligible for parole.  I declare that had you not pleaded guilty, I would have imposed a total effective sentence of eight years imprisonment with a six year minimum non-parole.

59I declare that there is 65 days pre-sentence detention.  The authorities have sought a forensic sample order from you.  Having regard to the seriousness of the offending, I am ordering that you provide a mouth swab sample to go onto the database and I must advise that the authorities are entitled to use reasonable force to obtain that sample.

60The authorities have also sought a forfeiture order in relation to the drugs and the firearm and I will make that order.  And a disposal order.  Yes, so I will make an order for the two forfeiture orders that have been sought and a disposal order and the order that you provide a mouth swab.

61Thank you Mr Cole and Ms Siriwardana for your assistance.

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