Director of Public Prosecutions v Battisti, Vincent and Battisti, Stefania
[2012] VCC 1385
•3 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01624 & CR-11-01625
CR-10-01597 & CR-10-01598
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VINCENT BATTISTI STEFANIA BATTISTI |
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JUDGE: | HIS HONOUR CHIEF JUDGE ROZENES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 August 2012 | |
DATE OF SENTENCE: | 3 September 2012 | |
CASE MAY BE CITED AS: | DPP v Battisti, Vincent & Battisti, Stefania | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1385 | |
REASONS FOR SENTENCE
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Catchwords: Trafficking in a drug of dependence – possession of precursor chemicals – possession of methylamphetamine – use of methylamphetamine – possess a prohibited weapon without exemption – rehabilitation – compelling character evidence
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Nibbs | Office of Public Prosecutions |
For the Accused Vincent Battisti | Mr D. Whitechurch | Melasecca Kelly & Zayler |
| For the Accused Stefania Battisti | Ms K. Blair | Michael Kelly |
HIS HONOUR:
1 Vincent Battisti you have pleaded guilty to one charge of trafficking in a drug of dependence the maximum penalty for which is 15 years imprisonment. You have also pleaded guilty to three related summary charges, namely one charge of possess methamphetamine, one charge of use methylamphetamine and one charge of possess a prohibited weapon without exemption, namely a dagger. The respective maximum penalties for these offences are five years imprisonment, one year imprisonment and a fine of 30 penalty units, and two years imprisonment or a fine of 240 penalty units. Your offending occurred between 12 September 2009 and 5 May 2010. You have 15 prior convictions arising from seven court appearances over a 28 year period, including a number of convictions for similar offending.
2 Stefania Battisti you have pleaded guilty to one charge of possession of precursor chemicals, the maximum penalty for which is five years imprisonment or 600 penalty units. Your offending occurred on 9 March 2010. You have one prior conviction in 2006 which is not relevant to these proceedings.
3 The facts of the case were opened by Mr Nibbs and are contained in the Summary of Prosecution Opening, Exhibit A in these proceedings.
4 By way of brief summary, you were both intercepted by police whilst driving on 12 September 2009. Police conducted a search of the vehicle and found various items used in the preparation of amphetamines. A search warrant was later executed on your house in Ringwood where a clandestine laboratory and various chemicals associated with the production of amphetamines were located. A search warrant was also conducted on a self-storage unit where further items used in the process of manufacturing amphetamines where located.
5 Surveillance by police revealed that both of you attended a number of pharmacies where you purchased numerous packet of cold and flu tablets. When arrested, you Stefania Battisti had at least 25 grams of a mixture containing pseudoephedrine. You Vincent Battisti admitted to police that you manufactured amphetamines for your own use.
6 In response to my query about the appropriate range applicable in your case Vincent Battisti, the prosecutor said that a term of imprisonment was warranted and that a partially or wholly suspended sentence would be within the sentencing range and, in your case Stefania Battisti, that a community corrections order would be appropriate, but that an adjourned undertaking would be within the appropriate range.
7 Tendered on your pleas was an email from Mr Robert Melasecca, Exhibit 1; a bundle of certificates, Exhibit 2; two letters, Exhibit 3; and a letter from Uniting Care, Exhibit 4; as well as a number of character references and certificates from the Salvation Army.
8 The character evidence given by Mr Melasecca for both of you and the content of his email were impressive to say the least. He attested to his long association with both of you, going back some 25 years, your previous good character and high standing in the community as well as the inexplicability of your involvement in this offending. The personal contents of the correspondence need not be set out, suffice to say considerable evidence was put before this court as to your progress and rehabilitation since the offending and the ongoing battle by you Mr Battisti to be rid of your drug addiction.
9 Mr Henri Ser also gave evidence as to your involvement in the Bob Maguire Foundation and the good work you have done with the foundation as well as the remorse you have expressed.
10 On your behalf, Mr Whitechurch submitted that I take into account the following matters by way of mitigation:
(1) You pleaded guilty and are entitled to an appropriate sentencing discount having regard to the utilitarian benefit of your plea and that it was indicative of remorse;
(2) You are 51 years of age and your last conviction was nearly 4 years ago;
(3) He said you had made a significant effort to turn your life around, including completing a course at the Basin Centre and being involved with the Bob Maguire Foundation;
(4) He said that you suffered from depression and that there are good indications you are now drug free;
(5) He said that you made full and frank admissions when arrested; and
(6) That whilst your offending was serious, you only produced amphetamines for personal use. This is a significant feature of your offending.
11 On the question of penalty Mr Whitechurch submitted that I should consider imposing a suspended sentence of imprisonment.
12 On your behalf, Stefania Battisti, Ms Blair submitted that I take into account the following matters by way of mitigation:
(1) That you have pleaded guilty and are entitled to an appropriate sentencing discount, having regard to the utilitarian benefit of your plea and that it was indicative of remorse;
(2) You are 49 years of age and have no prior convictions;
(3) She said your involvement was minimal. Whilst the offence with which you are charged is serious, your offending is at the lowest level;
(4) She said that you became involved in the offending in some misguided attempt to support and be closer to your husband; and
(5) Finally, since your husband's incarceration, you have suffered a loss of your family home and have struggled through crisis and emergency accommodation before finally securing somewhere to live.
13 On the question of penalty Ms Blair submitted that I should consider imposing an adjourned undertaking.
14 The basic 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 I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any. 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 as far as possible offenders are rehabilitated and reintegrated into society.
15 The trafficking in drugs is a pernicious event. Drugs effect the health and lives of many and are often found as the cause of other serious offending. Trafficking in drugs in the quantities to which you have pleaded guilty is a serious crime. So much is made clear by the maximum penalty. There are levels of seriousness even at this level of offending and I accept that your level is at the lower end of the scale. This is a case of a clear example where the destructive effects of drugs not only upon those that use them, but those who care for them when they are gripped in the addiction of drugs.
16 I take into account your pleas of guilty, the efforts you have both made to get your lives on track and the very significant character evidence put before me. I also take into account the circumstances of the offending where it is clear that you, Vincent Battisti, have a drug habit which you supported through producing amphetamine and that you Stefania supported your husband in this offending.
17 Please stand, Mr Battisti.
18 Mr Nibbs conceded that a partially suspended sentence was within the range of sentences properly open to me, and I believe it is both in yours and the community's interest that you not be given a prison sentence to be served immediately.
19 On Charge 1, trafficking in a drug of dependence, you are convicted and sentenced to 12 months' imprisonment.
20 On the related summary charge of possess methylamphetamine, you are convicted and sentenced to two months' imprisonment.
21 On the related summary charge of use methylamphetamine, you are convicted and sentenced to one month imprisonment.
22 On the related summary charge of possess a prohibited weapon without exemption, you are convicted and sentenced to two months' imprisonment.
23 I direct that all the sentences be served concurrently.
24 I propose to suspend all but 77 days of the sentence for a period of three years.
25 Before I do that I am obliged to explain to you that you have been sentenced to a 12 month term of imprisonment but that you will only have to serve 77 days of that sentence immediately. If you commit an offence punishable by imprisonment in Victoria or elsewhere then you might be brought back before me and, absent exceptional circumstances, might be ordered to serve the balance of that sentence. Do you understand that?
26 PRISONER: I do.
27 HIS HONOUR: I now declare that 77 days of pre-sentence detention be reckoned as having been served under the sentence and I direct that a declaration of that effect be recorded in the records of the court.
28 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non-parole period which I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to 18 months imprisonment with a non parole period of 12 months. You can step out of the dock thank you.
29 Please stand, Mrs Battisti.
30 On the sole charge of possessing a precursor chemical, you are convicted and I direct that you be released on an undertaking to be of good behaviour for a period of three years.
31 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to 10 months imprisonment with a non parole period of 6 months.
32 I have made the disposal order by consent. I also make a forensic sample order in relation to you Mr Vincent Battisti pursuant to s.464ZF of the Crimes Act 1958. I do so because of the seriousness of the circumstances, your prior convictions and because the application is by consent.
33 I am obliged to tell you Mr Battisti that notwithstanding your consent, if you do not ultimately co-operate in the taking of a sample, reasonable force may be used. Do you understand that? Yes. You may step out of the dock, Mrs Battisti. Are there any other orders?
34 MR NIBBS: No, Your Honour.
35 HIS HONOUR: Is there no forfeiture order?
36 MR NIBBS: There's only the disposal orders for the items seized, Your Honour.
37 HIS HONOUR: Have we got that?
38 MR NIBBS: Yes, it was already done.
39 HIS HONOUR: I make the disposal orders by consent. Mr Battisti, just come forward. Ms Blair, would you take your client through the terms of the good behaviour.
40 MS BLAIR: Your Honour, was that with conviction?
41 HIS HONOUR: With conviction. Just come forward to the Bar table, Mrs Battisti.
42 ASSOCIATE: Stefania Battisti, in the County Court at Melbourne on 3 September, convict you of possess pre-cursor chemical more than the prescribed quantity and placed you on an undertaking with the following conditions. The undertaking starts on September 2012, today, and goes for three years. You must be of good behaviour during the period of the undertaking and you must attend before the court if called on to do so during the period of the adjournment. Do you agree to these conditions?
43 PRISONER: Yes.
44 HIS HONOUR: Very well. Ms Nibbs, anything from you?
45 MR NIBBS: No, Your Honour.
46 HIS HONOUR: Ms Blair?
47 MS BLAIR: Your Honour, there's some unrelated summary offences that have been transferred along with the brief that either need to be remitted or dealt with in some way.
48 HIS HONOUR: What are they? What sort of offences are they?
49 MR NIBBS: It was possess proceeds of crime, handling stolen goods - - -
50 MS BLAIR: No, it's just a deal with proceeds of crime. A handle stolen goods would be an indictable offence that could be heard here but there's deal with proceeds of crime, there's two charges, cash and property. They remain, I believe for both - - -
51 HIS HONOUR: What do you want me to do with it?
52 MS BLAIR: I'd like you to strike them out but - - -
53 MR NIBBS: My instructions are to have them remitted to the Magistrates' Court.
54 HIS HONOUR: Against who?
55 MS BLAIR: I believe they're against both.
56 HIS HONOUR: I will remit them to the Magistrates' Court. Anything else? 3.30.
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