Director of Public Prosecutions v Braione (Sentence)

[2025] VCC 1237

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DRUG AND ALCOHOL TREATMENT DIVISION

Case No. CR-23-00833
Indictment No. N10884675.1

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID JOHN BRAIONE

---

JUDGE:	HIS HONOUR JUDGE D. SEXTON
WHERE HELD:	Melbourne
DATE OF DETERMINATION HEARING:	21 February 2025
DATE OF HEARING:	27 March 2025 (Ruling); 23 May 2025 (Sentence)
CASE MAY BE CITED AS:	DPP v Braione (Sentence)
MEDIUM NEUTRAL CITATION:	[2025] VCC 1237

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:          Trafficking in a drug of dependence – commercial quantity; Possession of a drug of dependence

Legislation Cited:         Sentencing Act 1991

Cases Cited:DPP v Braione (Ruling) [2025] VCC 66; Markovic v The Queen [2010] VSCA 105

Sentence:Six years and three months’ imprisonment with a non-parole period of four years; Forfeiture and Disposal orders

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Fleming	Office of Public Prosecutions
For the Offender	Mr. N. Papas KC (for Determination) Ms T. Skvortsova (for Ruling and Sentence)	Damian McNally & Associates Pty Ltd

HIS HONOUR:

Introduction

1Having delivered my detailed Ruling in relation to Mr Braione's application for a Drug and Alcohol Treatment Order on 27 March 2025,[1] pursuant to s18Z of the Sentencing Act 1991[2], and having regard to the matters to which I referred in that Ruling, I do not now intend to repeat the matters relevant to the sentencing exercise.  My Ruling will be annexed to these reasons for sentence.

[1]        DPP v Braione (Ruling) [2025] VCC 66

[2]        Sentencing Act 1991

2However, there is one matter to which I will return.  When considering the four-year criteria, I dealt with the issue of the hardship of a sentence of imprisonment upon your family, in particular, given the sentiments expressed by your partner, ER, in her character reference dated 12 February 2025 (Exhibit E) at your determination hearing.

3I then indicated that, 'whilst not reaching the level of exceptional circumstances, I have also taken into consideration the impact that a sentence of imprisonment would have upon your immediate family, in particular given the sentiments expressed by Ms ER in her character reference.  Clearly, your incarceration would have extremely negative consequences for Ms ER and the children, and I accept the significant anxiety for you in relation to a sentence of imprisonment, leaving Ms ER with the sole care of your nine-month-old son and resulting in your removal from your three children's lives during their formative years.

4

At your further plea hearing before me today, 23 May 2025, your Counsel,

Ms Skvortsova, made further submissions on the issue of hardship, having regard to the Written Outline Of Submissions dated 21 May 2025 (Exhibit K) and the affidavits of Ms ER, your partner, dated 21 May 2025 (Exhibit M), and your twin sister EP dated 21 May 2025 (Exhibit L).

5Essentially, your Counsel submitted that a further mitigatory allowance was warranted on sentencing by virtue of the hardship to you through your experience of a term of imprisonment and your knowledge of the impacts upon your family, and it was submitted that a further mitigatory allowance was warranted on the basis of hardship to your partner, Ms ER and your children, which was said to meet the exceptional circumstances threshold established by the relevant authorities.

6It was submitted on your behalf that the circumstances with regard to your children X and V in particular, together with your partner Ms ER, are those that rise above the hardship commonly suffered by families of imprisoned offenders, noting that X and V in particular are especially vulnerable dependents of yours.  Your counsel submitted that X and V have been residing with you consistently for 50 per cent of the time since late 2022, and that in the past six weeks this has increased due to difficulties experienced by their mother, Ms LM.  According to your counsel, in recent times Ms LM's ability to care for the children has markedly deteriorated to the extent that consideration has been given to a Departmental notification.  It was submitted that upon your return to custody, you will be unable to assist Ms LM in ensuring the welfare of X and V at least during the periods they would otherwise be with you, and that if Ms LM is left as the sole or primary carer, it is likely that their welfare will be adversely affected, and they are also likely to regress in the bond they have formed with your family.  It was also submitted that should the shared care arrangement continue in your absence, the parenting role for X and V, in addition to the nine-month-old son that you share with Ms ER, will fall upon Ms ER.  This would effectively make Ms ER a single parent of three young children without the assistance of the income from your employment and without your assistance with day-to-day care.  This would impact on Ms ER’s ability to work full-time in her current role in pathology given the necessary time to care for three children, and she will be unable to continue her studies until you return from custody.  Separately, it was submitted that your nine-month-old child would be deprived of the daily role of his father in his formative years. 

7Having read the detailed Affidavits of your partner and twin sister, it is clear to me that your incarceration will have significant adverse impacts upon those that you love and care for – namely your partner Ms ER, and your three young children. Both women have expressed concerns with regards to the welfare of X and V, the children you share with their mother Ms LM, particularly in recent weeks. Essentially, they are concerned that the children are not being adequately cared for by their mother when she has them in her care, and concerns have been raised with regards to Ms LM's functioning, and suspected factors which may be impacting upon her ability to care for the children. Save for Ms ER and Ms EP's visual observations of the children, and some instances recently where the school and kindergarten have made contact due to Ms LM failing to pick up the children when required, the Court has not been provided with any objective evidence, for example from a medical practitioner, paediatrician or nutritionist, of inadequate care. Whilst the concerns may well be well founded, in my view they remain just that – concerns. Your partner's Affidavit expanded upon the matters referred to in her earlier letter dated 12 February 2025, setting in out in detail the adverse impacts of your incarceration upon her and your shared child, a nine-month-old son. Ms ER is it seems at the end of her maternity leave. She faces the invidious dilemma of seeking to extend that period, return to part-time work, or resign and go on Centrelink benefits in order to care as a single mother for your nine-month-old child, and possibly the other two children part-time. She will suffer financially, and her studies will be interrupted for a protracted period of time.

8As hopefully has been made clear in the course of submissions this morning, the Court would have to be made of stone not to be affected by these matters. They highlight just how impactful a sentence of imprisonment will be for your loved ones, who of course have done nothing wrong. Sadly, such consequences are not uncommon when sentencing offenders for serious offending, to sentences of imprisonment. Hardship, often significant hardship, to an offender's family and dependents is the tragic but often inevitable consequence of the imposition of a significant sentence of imprisonment. The law is clear - in order for the family hardship to constitute a mitigating factor on sentencing, it is only in the exceptional case, where a plea for mercy is seen as irresistible, that family hardship can be taken into account.[3] Such cases will be rare.[4] Having carefully considered the material and submissions on this issue, I have determined that the exceptional circumstances threshold is not met in your case. However, this is not the end of the matter.

[3]        Markovic v The Queen [2010] VSCA 105, at [7]

[4]        (Ibid) at [77]

9It was also submitted by your counsel that a mitigatory allowance was warranted on the basis of hardship to you by virtue of the custodial sentence having regard to the awareness on your part of the likely adverse impacts upon your family. An offender's anguish at being unable to care for family members can properly be taken into account as a mitigatory factor, for example, if the Court is satisfied that this will make the experience of imprisonment more burdensome, or that it materially affects the assessment of the need for specific deterrence, or the offender's prospects of rehabilitation. This aspect of mitigation is not subject to the exceptional circumstances threshold.[5]   

[5]        (Ibid) at [20]

10Essentially it was submitted that there would be hardship to you as a result of being separated from your three children during their formative years and there would be hardship to you due to your knowledge of the difficulties that will fall on your partner Ms ER in the time of your absence, and it was submitted that this hardship will affect you daily as you serve your sentence of imprisonment.  It was further submitted that there would be hardship to you by virtue of your separation from X and V at a time of their particular vulnerability, and in uncertain circumstances in terms of what will happen to their wellbeing given that you are no longer in the community.

11On this issue I agree with your Counsel's submissions. I have no doubt that the sentence I am about to impose will weigh very heavily upon you. It is very clear to me from an assessment of all the material, together with my own assessment of your conduct and demeanour in Court over multiple hearings, that you are deeply committed to your partner and young family, and acutely aware of the hardships that your incarceration will cause. This will no doubt make the sentence of imprisonment particularly burdensome for you, such that a mitigatory allowance of some significance is warranted, in my view. I have also concluded that this hardship, in combination with your plea of guilty, and excellent rehabilitative prospects diminishes the need for any sentence I impose to reflect the sentencing purpose of specific deterrence.

12On the topic of applicable sentencing purposes and the weight to be afforded to them, given the nature of your offending, the sentencing purposes of denunciation, general deterrence and community protection are of course important considerations in the sentencing exercise. In your case, given that I have concluded that your prospects of rehabilitation are strong, particularly if you receive appropriate supports upon your release with regards to your substance use issues, and that the sentence I will impose will likely significantly deter you from again committing crimes of this nature, I do not believe that there is any significant need for the community to be protected from you, and so the application of community protection as a relevant sentencing purpose in your case is diminished.

13On the issue of your prospects of rehabilitation, your ongoing compliance with bail in the intervening period from the date of the adverse ruling with regards to your application for a Drug and Alcohol Treatment Order, and your timely attendance today knowing the outcome, stands to your credit and fortifies my view with regards to your strong rehabilitative prospects.

14The offence of trafficking in a commercial quantity is a Category 2 offence, meaning pursuant to s5(2H) of the Sentencing Act 1991 that in the circumstances of your case I must impose a sentence of imprisonment, excluding a term of imprisonment in combination with a community correction order. Upon conviction for Charge 1, you fall to be sentenced as a serious drug offender for Charges 2 and 3. Having determined that a sentence of imprisonment is justified, s 6D of the Sentencing Act 1991 requires me to regard community protection as the principal sentencing purpose for those charges, and I may impose a longer sentence than would otherwise be imposed to achieve that sentencing purpose. There is also a presumption of cumulation with regard to serious drug offences. Of course, whilst in any event a measure of cumulation is required in my view with regards to the trafficking offences, this is subject to the overarching principle of totality. As required by the legislation, I will order that you being sentenced on Charges 2 and 3 as a serious drug offender is entered into the records of the Court.

15I turn now to the parole eligibility component of the sentence I am about to impose. The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation, through conditional release when appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances. Having regard to the powerful constellation of mitigatory factors in your case, and in particular your excellent rehabilitative progress since being granted bail, I have determined that the sentence I am about to impose should have a significant parole eligibility component, to facilitate your eventual reintegration into the community, should the authorities deem it appropriate.

Sentences to be imposed:

16Mr Braione, would you please stand.

17On Charge 1 on the indictment, trafficking in a commercial quantity of methylamphetamine on 31 March 2022, you are convicted and sentenced to three years and six months' imprisonment.

18On Charge 2 on the indictment, trafficking in a commercial quantity of methylamphetamines on 4 May 2022, you are convicted and sentenced to five years and two months' imprisonment.  This is the base sentence.

19On Charge 3 on the indictment, trafficking in a commercial quantity of methylamphetamines on 4 May 2022, you are convicted and sentenced to five years and two months' imprisonment.

20On Charge 4 on the indictment, possession of cocaine on 4 May 2022, you are convicted and sentenced to nine months' imprisonment.

21I order that five months on Charge 1, and eight months on Charge 3, be served cumulatively upon each other, and on the sentence imposed on Charge 2, making a total effective sentence of six years and three months' imprisonment.

22I order that you serve four years' imprisonment before becoming eligible for parole.

23Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 120 days
pre-sentence detention and order that this period be administratively deducted from your sentence.

24Pursuant to s6AAA of the Sentencing Act 1991, I declare that if you had pleaded not guilty but been found guilty at trial, I would have imposed a total effective sentence of eight years and six months' imprisonment, with a non-parole period of six years.

25Finally, I will make the disposal and forfeiture orders sought by the Crown, those applications not being opposed by you.

26Take a seat for a moment please.

27Ms Fleming, any issues or ambiguities with regards to the sentence I have just announced?

28MS FLEMING:  No, Your Honour.

29HIS HONOUR:  Ms Skvortsova, same question to you.

30MS SKVORTSOVA:  No, Your Honour.  As the Court pleases.

- - -