Director of Public Prosecutions v Bartolo
[2022] VCC 1556
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
Case No. CR-21-01592
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LAWRENCE BARTOLO |
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JUDGE: | HER HONOUR JUDGE SYME | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 August 2022 | |
DATE OF SENTENCE: | 12 September 2022 | |
CASE MAY BE CITED AS: | DPP v Bartolo | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1556 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Trafficking in a drug of dependence – Possession of a drug of dependence – Negligently dealing with the proceeds of crime – significant conduct toward rehabilitation -
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic).
Sentence: Combination sentence of 65 days of imprisonment (declared as time served) and a Community Corrections Order of 2 years duration.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | Ms J. Verkade |
| For the Accused | Mr M. Kelly (on behalf of Mr A. Chernok) |
HER HONOUR:
1 Lawrence Bartolo, you have pleaded guilty to the following charges:
2 Firstly, trafficking a drug of dependence (methylamphetamine), contrary to section 71AC(1) of the Drugs, Poisons and Controlled Substances Act. The maximum penalty for this offence is 15 years imprisonment.
3 Secondly, possession of a drug of dependence (cocaine), subject to the same Act.
4 Thirdly, possession of a drug of dependence, namely, alprazolam, contrary to the same Act.
5 Fourthly, possession of a drug of dependence, diazepam, under the same Act.
6 The maximum penalty for these three offences is 30 penalty units and/or one year imprisonment if dealt with summarily.
7 And finally, Count 5, negligently deal with the proceeds of crime. The maximum penalty for this offence is five years imprisonment.
8 There is one related summary offence that I will be dealing with - committing an indictable offence whilst on bail. The maximum for that offence is three months imprisonment.
9 I note that you have spent 65 days in custody prior to the sentence of this matter. That was between the date of arrest (13 October 2020) and 16 December 2020.
10 I also note you have admitted prior convictions. The circumstances of those prior convictions will not allow a consideration of leniency in the sentence to be imposed for these charges. They are, in summary, a 2009 cultivate cannabis and theft offence for which you were sentenced to a four-month intensive corrections order. You were also ordered to pay some compensation. You indicated, in conversation with your psychologist, Mr Armstrong, that you did not complete the therapy associated with this order.
11 In 2018, you were convicted of various charges relating to the possession of drugs, dealing with proceeds of crime, possession of weapons and driving offences. These offences were related to substances. You were sentenced to a 24-month Community Corrections Order (‘CCO’) and ordered to complete 300 hours of unpaid community service work. You were again ordered to undergo treatment and therapy.
12 In 2021, you pled to further offences and the CCO was extended and confirmed. In addition, these current offences were committed whilst you were on bail for offences which were unrelated given they were driving offences. However, those driving offences were, I note, also related to alcohol abuse and are therefore relevant when considering your substance abuse issues in general.
13 The facts relevant to these offences are set out in the prosecution opening and not in dispute.
Circumstances of offending
14 On 13 October 2020, presumably after suspicions were raised, police executed a warrant at your home. They located a briefcase containing over $36,000.00 and an Apple iPhone. A further approximately $6,000.00 was located hidden in the pantry. The total cash located, to which you have pleaded as proceeds of crime, is $42,710.00. This is Charge 5 on the Indictment.
15 Police further located a zip lock bag containing methylamphetamine weighing 285.5 grams and this is Charge 1. Police also located a money counter, scales and two boxes of snap lock bags in the same place. These items are further indicia of supply on a large and continuing level.
16 In other parts of the kitchen and laundry, police located a plastic bottle containing alprazolam tablets (Charge 3), a plastic bottle containing diazepam (Charge 4), a zip lock bag containing 37.3 grams of cocaine (Charge 2) and a zip lock bag containing a further 1.9 grams of methylamphetamine (Charge 1).
17
Subsequent analysis of the drugs seized at the premises showed that the
285.5 grams of methylamphetamine returned a purity of 1.7 per cent. The 37.3 grams of cocaine, however, returned a purity analysis of 78 per cent. That is, 29.1 pure grams. The separate 1.9 grams of methylamphetamine returned a purity of 82 per cent.
18 You were interviewed. You made no admissions to the offending, save to say that 'anything that was illegal on [the] property [belonged] to [you]'.
19
CCTV from your home showed evidence of you trafficking. The evidence is summarised as follows and this relates to Charge 1 on the indictment. Firstly, on 9 October 2020, at 8.55 pm, you exchanged somewhere between
$30,000.00 to $50,000.00 of Australian currency for three plastic zip lock bags containing a white substance.
20 Secondly, on the same day at approximately 8.05 pm, a woman exchanged a plastic bag containing a white substance for an amount of cash. At about 8.16 pm, you exchanged a plastic bag containing a white substance for an amount of cash with another woman. Again, on the same day, at about 9.11 pm, a male entered the garage and gave you approximately $3,000.00 in cash in exchange for a black toolbox.
21 On 13 October 2020, at approximately 8.41 am, police arrived at the house. You retrieved items from the garage cupboard and flushed a substance from a plastic bag into the sink. This action indicates a consciousness of guilt.
22 Police also downloaded the contents of your mobile phone. They uncovered further evidence of involvement in supply at scale between 11 and 12 October 2020. Conversations on that phone related to the purchase of a kilogram, the sum of $10,000.00 and the further provision of 100K, which I assume to be $100,000.00 for future use. The conversations also related to the provision of 2 kilograms ‘on tick’.
23 These conversations support a direct and long-term involvement with a significant drug supply. The degree of sophistication and organisation, I note, was fairly rudimentary, however.
24 I further note that at the time of the offending, you were on bail for other offences and therefore, the further summary offence is relevant.
25 In relation to your plea, after some negotiations and a contested committal, you ultimately pled guilty on 31 January 2022 to the charges that I have now outlined.
26 In the circumstances, it is a relatively early plea, and you will be afforded appropriate consideration for that plea as an expression of acceptance of responsibility. This is relevant to your prospects of rehabilitation and is recognised as an assistance to the administration of justice. This will be further referred to below.
Objective gravity of the offending
27 I now turn to a consideration of the objective gravity of the offending. It is obvious from the above summary that you were involved in the trafficking of a substance assumed to be methylamphetamine for a significant period of time. You handled a significant amount of money in that time. The funds found in your possession were the proceeds of criminal activity. Although, I accept, they were not necessarily a representation of profit made in that time.
28 It is accepted that the descriptor user/dealer best fits your involvement in the sale of drugs although that label covers a very wide array of circumstances. The discussions concerning much, much larger amounts of drugs and larger amounts of money perhaps, show that you were at least ambitious for greater involvement in the trafficking of drugs. Considering the amount of drugs and cash in your possession, you are a mid-range level offender for the offence charged.
29 Obviously, the trafficking charge is the most serious but all of your offending related to trafficking and for this reason, an aggregate sentence will be imposed.
30 However, there is no evidence presented that you acquired substantial or indeed, any assets, as a result of your involvement in selling these substances. Your self-report to Mr Armstrong supported independent information reported to him and supports the finding that your substance abuse drove your offending. It is likely that any profit from the sale of drugs was directed to those higher up in the supply chain and/or diverted into substances for your own use.
31 This observation is not an unusual situation that many offenders who use substances find themselves in. This situation is one of making money for those who manufacture, import and/or finance large transactions. People at your level ultimately get caught due to the visibility of the required retail side of the operations. It is a business model which frequently ends in the circumstances you now find yourself in.
32 In relation to your plea of guilty, whilst I observe this is not a plea which comes at the absolute earliest opportunity, it was apparently entered as a result of negotiations after an examination of the facts. The plea has been of administrative assistance to the State as described in Worboyes decision.
33 An early plea can be some evidence of remorse. Remorse, however, is not an end of itself. It must be part of a greater recognition of the need not to reoffend. Your steps toward rehabilitation are greater evidence of that and this will be referred to very shortly.
Personal circumstances
34 I will refer now to your background and personal history, which was contained in your self-report to Mr Armstrong. He, in his report, details your life history from an early age, as told to him.
35 You report no difficulties in your early years, apart from high parental expectations. I note that at a relatively early age, you obtained qualifications as a fitter and turner, which enabled you to work in a very productive capacity in your younger years.
36 Later on, you had a stable life with your then partner (later, wife), Ms Stafford. You and she had four children over the years you were together. You report, and she reports, that you presented with no substance abuse issues in that time.
37 However, at age 26 years, in 2009, you changed your employment and took new casual employment as a wharf worker. This job, I am told, brought you into contact with alcohol and cocaine abuse and a peer group involved in such activities. It seems you quickly developed a habit of weekly substance use, at least, of alcohol.
38 As mentioned earlier, your first relevant conviction was for cannabis related offending in 2009. You were placed, as I noted, on a supervised Order. You reported that, notwithstanding this detection, you continued to binge drink and use cocaine.
39 In 2018, as I noted, you were further convicted of serious drug related offences, as noted above. You were perhaps lucky, at that time, to avoid imprisonment. You were placed on a supervised CCO (with drug use and treatment conditions) for two years which you report you successfully completed. However, you relapsed shortly after the completion of that order, as evidenced by your current offending.
40 In an historical sense, Mr Armstrong observes that you present with features of a narcissistic personality. However, before your addiction took over, you had a largely productive life and provided for your family.
41 Your then wife reports that she was largely unaware of the extent of your addiction during the later years of your marriage. This again, I observe, is not unusual. You report yourself as being a frequently absent father. I observe, again, that this is not unusual as it is usually the families of addicts who suffer from such self-focussed behaviour.
42 Mr Armstrong further observes that despite potentially showing some indication of a mild learning disorder earlier on, you achieved a great deal in your chosen trade. It seems that the change in vocation, work association and social group resulted in you first experimenting and then very quickly becoming addicted to cocaine.
43 This is, and was, a no doubt, expensive addiction. My observation is that it has gone on far too long and has resulted in the destruction of your life goals and your relationships.
44 The narrative and your most recent offending are, as the psychologist opines, consistent with a diagnosis of stimulant use disorder both to cocaine and alcohol. Supporting this observation is the number of other substances found in your possession.
45 Considering the variety and quantity of drugs, some of which were of very low purity, my observation is that your life was well and truly out of control by the time you were apprehended. It is in these circumstances that the current offences were committed.
46 Your personality features, as observed by Mr Armstrong, suggest that you are at a greater risk of substance abuse, especially substances like cocaine, which he opines, tends to counter vulnerabilities in your identity. Drug abuse, in turn, amplifies disturbances in your personality, that is, your narcissistic behaviour, which by definition, is a self-focussed avoidance of your negative personality traits.
47 I accept that addictions require a significant amount of money to maintain and support. Obtaining that substance placed you in direct contact with dealers at a higher level. It is not unusual for addicts in the grip of addiction to resort to the sale of their drug of choice or other drugs in order to fund that habit. It is a familiar and ultimately, destructive pattern.
48 This is by no means a mitigating observation. But it is an explanation of the entirety of the circumstances of your offending and may inform the court of considerations that might be taken into account when considering your prospects of rehabilitation and/or your risk of reoffending.
49 In relation to the diagnostic considerations utilised by Mr Armstrong, I note that you were arrested on 13 October 2020. You were in custody until bail was granted on 17 December that year, serving 65 days. On release, I note you enrolled in the Arrow Health Rehabilitation Program as an inpatient, remaining there until March 2021.
50 According to your self-report to Mr Armstrong, you continued outpatient treatment with Arrow for only a short while but you told him you continued to attend narcotics anonymous meetings regularly.
51 You were first interviewed by Mr Armstrong in April 2021. He expressed, at that time, a cautiously positive prognosis. He included a suggestion that psychological treatment and counselling continue for two to three years. Such treatment would require independent proof of compliance with abstinence.
52 I note an event between you and your former partner, Ms Carlson, occurred on 21 June 2021, which resulted in her seeking a continuation of a family violence intervention order. This may be evidence of a brief relapse of substance abuse by you. This matter still remains before the courts, but I observe, with concern, that you and the complainant in those proceedings, share a child. Your contact with the child will, of necessity, require the two of you to behave like adults in the future, for a change.
53 After June 2021, I note that you attended Lamberti & Associates and attended further counselling and management of your addictive behaviours. A report dated July 2022 confirmed weekly counselling from that date. The report is positive. It outlines a series of lifestyle changes such as the improvement of family interactions, the cultivation of non-drug using peers, and an overall improvement in your mental health.
54 Associated with that treatment for your clearly diagnosed substance abuse disorder are a series of urinalysis results spanning August 2021 to June this year. These results clearly support a finding that you have not used substances since, at least, that time.
55 This is a good start but it only confirms a year of abstinence. It is early days. Mr Armstrong’s previous observation of two to three years remains relevant.
Delay
56 I turn now to the submissions relating to delay. Considerable delay has attended on this matter. There is no suggestion from the prosecution that you have unnecessarily delayed the proceedings by your actions. Delay can be relevantly considered in several ways.
57 In your case, you were fortunate to be granted bail in December 2020 to facilitate further rehabilitation. It is to your credit that you have taken that opportunity. The reports I have received have been uniformly positive, despite evidence of a possible relapse in June 2021.
58 In addition, during the course of your rehabilitation, you have undertaken a period of residential placement. This is sometimes referred to as quasi-custody. This will be taken into account, informally. It was submitted that the delay has, in and of itself, constituted a form of extra curial punishment due to the associated uncertainty.
59 I do not accept that the delay in this matter ought to be given such weight. Any good legal advice would have been that the only possible way of avoiding a custodial sentence of some length was to take the rehabilitation process seriously. However, to that end, specific deterrence has already been somewhat effective.
60 I will take into account, in a non-arithmetic way, the 90 or so days of residential rehabilitation that you have undertaken. Sometimes, it is noted to be a form of pre-sentence detention; a 50% calculation compared to standard pre-sentence detention. This is probably about right but as I said, I will consider it informally.
61 The greatest effect and positive result of this matter’s delay has been your ability, in that time, to prove to the court that rehabilitation is possible for you and in your case, rehabilitation is probable.
Prospects of rehabilitation
62 It is reported that since your completion of rehabilitation and while awaiting sentence, you have commenced your own business. You have been attending Narcotics Anonymous. You have entered into a new and positive relationship with a pro-social partner. You have improved your relationship with your own children, and it is reported that you have ceased associating with former friends who were drug users.
63 Therefore, a real consideration for the court is whether placing you back in custody again, at this stage, reflects a proper consideration of the purposes of sentencing as set out in the appropriate Act.
64 It is acknowledged that the section 5 considerations of the Sentencing Act and the purposes of sentencing often pull in different directions. Your case is a case where those different directions are very apparent.
65 A further custodial term, which is well within range for offending of this magnitude, is something that must be considered. The prosecution submitted that further gaol time was not only appropriate but called for. Given the maximum penalties for these offences and the objective seriousness of your offending, that submission has some force.
66 However, such a disposition would halt your business and your ability to financially support your family and yourself in legitimate ways. It may well cause damage to the relationships that you currently have in existence and certainly cause damage to your relationship with your young daughter.
67 It may and undoubtedly would, place you back into an environment with other offenders. None of that is desirable for a person who has spent the previous 2 years getting their life back together.
68 Based on the evidence provided in that time, I accept that, you have remained largely drug free. This is no small achievement for a person with a background of significant addiction. I note that your referees, who have provided written references for the court, credit you with being a person who has overcome some of your personal obstacles. They also credit you with being a person who, in general terms, is keen to set an example and assist others in distress.
69 Your family support is invaluable. With respect to your current presentation, I note that Mr Armstrong is confident that your stimulant use disorder is in remission. Your mental state presently appears to have stabilised. You continue to engage in treatment. Your self-reports have been corroborated by others.
70 Mr Armstrong suggests that positive peer relationships have been very important in your recovery. Your state of desire to become a reliable primary carer in your children's life is reportedly a further motivating factor for your mental health and recovery. Your growing business also remains positive and no doubt, a challenging experience for you.
71 You are to be commended for this venture and for this work. My observation is that you have returned to being the positive contributing member of the community that you were some 15 years ago. My advice is not to waste any more time.
72
Mr Armstrong is positive about your prospects. He recommends that you continue with your current treatment and engagement with Ms Brown or who she recommends, from time to time. Mr Armstrong also recommends that you continue to work productively with the
Department of Health and Human Services.
73 All of these observations are confirmed in the recent CCO extended report. Your previous contraventions and risk factors are noted. Your insight into those risk factors and the steps you have taken to address those factors are also reported.
74 You are deemed, again, to be suitable for a further CCO, with specific recommendations to address the now well identified risk factors.
75 Currently, you are assessed to present a low risk of re-offending. I accept that. I point out that placing you on a further CCO, while lenient, should not be seen as no punishment at all.
76 As Boulton's case observes, community supervision and a requirement to attend counselling with or without completion of unpaid community service work is a real restriction on your freedoms and must be taken seriously by the community and yourself.
77 Due the significant steps you have taken in your rehabilitation, I propose to afford you significant leniency and not return you to custody. Be aware, however, that any failures on your behalf to comply with all of the work and supervision orders or the commission of any further offences, will not result in such leniency again.
78 I would hope that those close to you now will be concerned enough about your future welfare to similarly advise your supervisors in the CCO that if they become aware of a relapse or of concerning associations in the future, they will advise your supervisors so that immediate steps can be taken to bring you back on track and into line.
79 The earlier any potential relapse is the subject of intervention; the earlier assistance can be put in place. Hopefully, in those circumstances, no steps need to be taken to notify a breach.
80 I note you are now 39 years of age. You have adult children and near adult children to guide by example. You also have a very young child who needs your focus and support. You have re-established yourself in the business, which appears to be a good one. You are qualified. You have significant family support who now know, and understand, your fragilities.
81 I would hope that your partner will be involved and confident enough in the process to be put in place to contact supervisors if she perceives that you require further or different assistance at any time. That would be of great assistance to you.
82 As noted above, the charges you have pleaded guilty to are intricately related to each other. The possession offences are of course, less serious, but relate to the trafficking offences in ways that I have referred to. An aggregate sentence is appropriate.
83 Stand up please, sir. I am going to impose all of those sentences now.
Sentence
84 The aggregate sentence in relation to Counts 1, 2, 3, 4 and 5 is a combined sentence of 65 days imprisonment, calculated as time served. In addition, I propose to place you on a CCO of two years, with conditions that you complete unpaid community service work totalling 240 hours. These hours, I specifically indicate, will be in addition to any hours outstanding on the previous Magistrates Court's orders.
85 One third of those 240 hours can be completed by attending the counselling or treatment that you will be required to undertake. That is to say, one-third of those hours can be deducted pursuant to sections 48C and 48D of the Sentencing Act.
86 I further order that you are to attend for such further treatment and assessment as directed by Corrections. At the moment, the treatment with Ms Brown is recommended and I have no doubt that it will be recommended to continue.
87 I will further order that you attend for mental health assistance and treatment as and when required.
88 In addition, as you are no doubt aware, sir, because you are still on a CCO, you will be required to report to the Derrimut Community Correction Services by telephone within two days to undertake further supervision.
89 You are no doubt aware that you are not permitted to leave the State of Victoria without specific approval of your CCO supervisors and that you must advise your CCO supervisors within two days of any change of address.
90 Pursuant to section 6AAA of the Sentencing Act, had you not pleaded guilty to these offences, I would have imposed a term of imprisonment of at least 18 months with a non-parole period of 12 months. The section 6AAA acknowledgment, to some extent, anticipates no acceptance of responsibility or insufficient attention to rehabilitation.
91 Finally, I propose to order the forfeiture orders sought with respect to the cash located in your presence. A disposal order will also be made with respect to the drugs and phone located at your address.
92 HER HONOUR: Is there anything else, Mr Pickering?
93 MR PICKERING: No, Your Honour.
94 HER HONOUR: Thank you. Is there anything else, Mr Kelly?
95 MR KELLY: There's not, Your Honour.
96 HER HONOUR: All right. We've printed out that CCO order. It's ready for your client to sign, if you'd like to take that and assist him. Thank you. All right. Thank you. If there is nothing else, we're all done. Thank you very much. Thank you for your submission. Adjourn now.
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