Director of Public Prosecutions v Camilleri
[2021] VCC 514
•29 April 2021
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-01518
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HENRY CAMILLERI |
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JUDGE: | HER HONOUR JUDGE GAYNOR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 29 April 2021 |
CASE MAY BE CITED AS: | DPP v Camilleri |
MEDIUM NEUTRAL CITATION: | [2021] VCC 514 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Duckett | |
For the Accused | Mr D. Langton |
HER HONOUR:
1Henry Camilleri you have pleaded guilty to one charge of trafficking in a drug of dependence, one charge of possessing a drug of dependence, one charge of possessing substances, materials, documents or equipment for trafficking in a drug of dependence, one charge of possessing a precursor chemical, one charge of cultivating a narcotic plant and one charge of possessing a prohibited firearm. The facts underlying your offending are as follows.
2At the time of the offending you were living at a house in Kilmore Road, Gisborne and you owned and operated a Bakers Delight store in Caroline Springs. You had previously been married to your wife for a period of 13 years and in July and August 2017 your former wife and your three children moved out of the family home. By 31 January 2018, the Bakers Delight franchise were receiving complaints at their headquarters from concerned staff members at your bakery about your use of methylamphetamine.
3Your former wife had moved out of the family premises after locating a 'laboratory' behind a secret door of the garage of your home. When she confronted you, you told her you had been getting Sudafed tablets from a pharmacy in Footscray so you could produce speed. At this time you were friends with two other persons, David Hatton and Sayan Hussein and during December 2017, the laboratory in the garage was seen by your son, Josh.
4On 8 March 2018, Josh sent you a text asking about the flasks, glass jars, drip things and hotplates he had seen in the garage, you responding five days later telling him to delete the text about what 'He thought he saw'. On
20 March 2018, your son responded saying that considering what he saw in the garage he thought you were, 'Still doing drugs'. During this time you were asking your sister to locate a Whizzinator which allow you to cheat on your urine tests as were required for contact with your children.5By 19 June 2018 this had been located for you and you used it to pass a urine test. During October 2017, you started a relationship with Monika Babic[1] which was turbulent and police were called to the house in Kilmore Road on a number of occasions. On 14 June 2018, at about 2.16 pm police were called to that house following a 000 report of an incident involving a firearm between yourself and Ms Babic. It was placed by a social worker, Hailey Balinger and on attending police found you to be 'paranoid, drug affected and delusional', refusing to tell police anything about a firearm or domestic violence and the matter was not taken any further.
[1] A pseudonym.
6On Friday, 3 August 2018 you and Babic had an argument during which you pulled a gun on her and she became frightened. You left home at about 12 am to go to work and on Sunday, 4 August 2018 at about 9 am, you returned home and found Ms Babic had packed her things in order to leave and the argument resumed.
7A physical altercation ensued during which Ms Babic pulled a knife on you and rang 000 twice. At 9.20 am, Ms Babic rang wanting to report domestic violence and asked to be referred to the Gisborne police station but when told she could not she hung up. At 9.23 she made a second call saying that if police did not get there soon, 'Someone would die' and eventually calls went out over police communications. At 9.48 am, two police members attended the Kilmore Road address by which time Ms Babic had gone leaving you there.
8You invited police into your premises where they saw broken glass near the porch area which you said was from Ms Babic dropping a bong as she left and after coming at you with a carving knife. As you spoke to them both police officers entered a bedroom off the main area and observed a clandestine laboratory set up on the floor of the bedroom with a box of drug-related paraphernalia beside it. As one police officer made that observation, you said 'She set me up'. Your actions in relation to that clandestine laboratory underlie Charge 3 on the indictment, being in possession of substance, material, document or equipment for trafficking purposes.
9Those actions are one part of that charge. The Clandestine Laboratory squad were organised to attend and dismantle the laboratory and a statement was taken from you. At about 11.30 am, Detective Senior Constable Wayne Andrews attended the house and spoke with you saying you had been set up and that you do not 'Touch the stuff'. You were the placed under arrest. You asked for and were granted permission to urinate against a tree in the driveway of the house. As you walked there you pulled a small glass crack pipe from your pocket and put it on the ground which police then seized.
10You were taken to the Gisborne police station where the first record of interview was conducted at 12.50 pm during which you made a mainly no comment response when asked about the clandestine laboratory. Police returned to the house. A search warrant was obtained and executed on the main house, an adjacent bungalow, the garage and a small shed. During the search chemicals, container and equipment were seen in various parts of the house including the bedroom, walk-in robe, en suite, kitchen as well as the garage.
11A hydroponic grow room set up containing 1-metre high cannabis plant was located in a concealed room in the shed. Your cultivation of this plant underlies Charge 6 on the indictment.
12An ice pipe was located in the kitchen and a handgun was found in the master bedroom under a pillow. Your possession of this item underlies Charge 8 on the indictment, prohibited person containing a firearm. There was 410 shell ammunition loaded into the handgun and
59-millimetre rounds of ammunition were found in a buffet in the kitchen.13Police also discovered a large amount of cold and flu tablets and various equipment relating to the manufacture of amphetamine. This material also underlies Charge 3. Ms Babic in the meantime made a statement with police. A further record of interview was conducted with you at 7.22 pm that day during which you said the cannabis plant belonged to you and your ex-wife and you denied involvement with the handgun or the clandestine laboratory. You were then released on summons.
14During that time police searched Ms Babic’s car and found her iPhone on which a number of text messages between you and she were located. A number of videos and still photographs were also located on her phone showing amongst other things, you standing in the kitchen of the house in Kilmore Road with the clandestine laboratory set up beside you, the clandestine laboratory set up in the spare bedroom of the house, and numerous photographs of various pieces of clandestine laboratory equipment both around the house and wrapped and partially hidden in the kitchen and laundry of the residence.
15Washings from various exhibits taken and they being substances found a total quantity of substances, 302 grams of a mixture with amphetamine. Your possession of this underlies Charge 1, trafficking in a drug of dependence, namely, methylamphetamine. The washings from those substances also contained ephedrine and pseudoephedrine. An amount of 35.4 grams of pseudoephedrine was found. Possession of this underlies Charge 2, possession of a drug of dependence, namely, pseudoephedrine. 701.9 grams of iodine were also tested which is a prescribed precursor in the making of methylamphetamine, and your possession of this underlies Charge 4 on the indictment, being in possession of a precursor, namely, iodine.
16Charge 5 relates to your possession of 538.3 grams of hypophosphorous also a precursor in the making of methylamphetamine. The quantity of methylamphetamine which could be produced from 35.4 grams of pseudoephedrine using the precursors is approximately 26.6 grams.
17Materials downloaded from your telephone and that of Ms Babic also showed a number of images of ice smoking devices and glassware, and scientific glassware. Police also found on the telephones, data searches and bookmarks of The Anarchist's Home Cookbook and an article on, 'What's speed?'.
18The maximum penalty on each of the charges are as follows. Trafficking in a drug of dependence, 15 years' imprisonment. Possessing a drug of dependence, namely amphetamine is five years' imprisonment. Possessing a substance, material, document or equipment for trafficking is 10 years' imprisonment. Possession of a precursor, namely, iodine or hypophosphorous acid it is five years' imprisonment. Cultivation of narcotic plant is one year's imprisonment or 20 penalty units or both.
19Possession of drug of dependence is five years' imprisonment. Possessing a firearm (and you were a prohibited person because you had an intervention order out against you) is five years' imprisonment or 1,200 penalty units or both.
20I now turn to your personal circumstances. You are 45 years of age and grew up in the western suburbs of Melbourne, that is St Albans were your parents were both factory workers. You have an older and a younger sister. You attended school until year nine as you were a poor student and had difficulty concentrating which appears to have been a lifelong problem. When you were 15 you started working in a local food shop where you were employed for four years. When you were 17 you began an apprenticeship at Bakers Delight and continued to work two jobs for the next two years.
21As a baker you had to start work at 1 am every morning and at this stage of your life you were introduced to amphetamine or speed which is often used in that industry as it helps concentration for long periods of time. You completed your apprenticeship in 1995 and left the baking industry to look for work with day shift hours. You were employed with TNT transport for three years and worked your way to becoming a dangerous goods supervisor for the Laverton district.
22You had always wanted your own business so you left TNT and took up a franchise training program before leasing a store from Bakers Delight in 2000. You purchased your first store in 2001, then a second store in 2003 and by 2005 both those stores were numbers 1 and 2 on the Victorian growth charts within Bakers Delight. By 2010 you owned four bakeries and employed 110 staff rostered 24 hours a day. However in 2011 you suffered a cashflow crisis as two of the stores barely breaking even due to a change in their shopping centre demographics.
23Because of the debt you were now carrying, you had to close one store and sold two others leaving the store in Caroline Springs. You were involved in lengthy legal proceedings against Bakers Delight which was time consuming and stressful and you were forced to sell the family home and return to renting for three years to again try and save up enough money for a deposit. During this time, it would appear from, particularly the depositional material and the statement of your former wife, you began using drugs again at some level and in particular began using methylamphetamine.
24This led to the end of your marriage in 2017. Running the store became extremely difficult. After your marriage ended you were working nights but you had to perform all the administrative duties and front of shop requirements which your former wife had always done. You had met and married your former wife in 1995. Your three children were born in 2000, 2003 and 2007. You purchased a home in Keilor in 2004 which you renovated. In 2016 you purchased a farm in Gisborne and renovated that house.
25Your counsel told me that speed enabled you to stay awake, spend time with your family and keep up your working requirements. You were working very long shifts, sometimes only having four to six hours between 18-hour shifts. You received calls all around the clock and you continued using speed to meet your work-homelife obligations. You were very involved in the children's activities such as swimming lessons, football training and your daughter's dance lessons. Your former wife would work afternoons in the stores and during that time you would make dinner, help the children with homework and undertake other parental duties.
26In 2012 you admitted yourself into an inpatient rehabilitation centre in North Melbourne and were able to remain drug-free for several years after that. You began using methylamphetamines again when the stressors I have outlined came into your life as you believed it would help you get things done, manage your life and it helped you to block the emotions you were then thinking. You eventually had limited contact with your children, the breakdown with your wife was acrimonious, you became involved in various legal proceedings in the Family Court and also you appeared in court on a number of occasions in relation to the taking out of intervention orders by your former wife and your breaching of them.
27You told your counsel that at the time of this offending you were very depressed, stressed, anxious and sometimes suicidal, and that you made poor decisions as your judgment was all over the place. At the time you met Ms Babic in October 2017, she was homeless and you wanted company. She was also a drug user so this was not a good relationship choice. In December 2019 you were arrested and placed in Port Phillip for four months on charges of stalking and breaching intervention orders. Your sisters ran the store for you while in custody. You were eventually released and fined $800 on 1 April 2020.
28Your ex-wife informed Bakers Delight that you had been charged with trafficking and firearms offences and they terminated your franchise agreement because this breached their agreement with you. You were left with a large debt and ultimately you had to declare bankruptcy. COVID-19 has made it difficult for you to obtain employment although you now work as a concreter's labourer several days a week. You also enrolled in the local CFA in order to fill up your time and your counsel informed me, to give back to the community.
29You continue to maintain the support of your sisters. Your relationship with
Ms Babic has now ended. In September 2019 you completed a drug rehabilitation program for addiction with Urban Rehab and I received a reference dated 11 November 2020 from the Director Brett Pascoe. He described you as battling extreme grief and loss over the marriage breakdown. He found that you took 100 per cent responsibility for your action and behaviours. He described your addiction as spiralling out of control and that 'for a time it appears that Henry lost all sense of purpose and reality'.30You were also keeping company with unsavoury persons they being, it would see the two men, Mr Hatton and Mr Hussein. Mr Pascoe also had sessions with your sisters and your parents. They described you as ordinarily a hardworking and honest man and indeed that was repeated by your sister, Susan Camilleri in her reference to this court dated 21 February 2021. I also received a reference from Chantelle Ostla from the Four Seasons Concreting & Earth Moving company. She stated in her reference dated 9 November 2020 that you had been working casually for her company for about a year. She described you as trustworthy, reliable, a genuine man, a great addition to the team and described you as friendly and approachable.
31You continued on with Urban Rehabilitation for some time, enrolling in the online drug, alcohol recovery program committing to a further 18 months.
32You continue to have and have had throughout COVID - weekly phone contact with Mr Pascoe who is situated in Queensland and you continue to find him of great assistance to you. A committal was conducted in this matter and eventually settled into a plea hearing following a sentence indication hearing before me. Although the prosecution submitted that the offending should be dealt with by way of a term of imprisonment or a term of imprisonment combined with a community corrections order, I adjourned this further in order to allow you to take the opportunity to seek psychological treatment which I was informed on return of this matter today, you have been unable to do although you have attended upon your GP on about six occasions. You have received referrals but simply have not been able to contract a psychologist, although you have made a number of attempts to do so, to undertake the psychological counselling that you require.
33I have had you assessed for a community corrections order because in my view I am satisfied that a great deal of this offending did take place in the context of the breakdowns of virtually every important aspect of your life, that being your business, your family and your relationship with your children. I accept that you had a long running industry linked to the use of speed until about 2012 when you voluntarily sought rehabilitation for yourself.
34I accept that you collapsed back into use of methylamphetamine in the wake of financial stress and for a while were very much addicted to it. I note that you have frankly told the Community Corrections Office that you occasionally do use methylamphetamine about once a month but I do regard this as progress on your part given the much more considerable basis on which you were previously using. I am satisfied that you have settled matters sufficiently with your former wife and children so that the court need not be concerned about interactions with them leading to court proceedings which in themselves provide a vicious circle to you relapsing back into ice use as a way of managing your own emotions. I am satisfied you have made considerable gains in your quest to remain drug-free.
35You have a long and impressive employment history and self-employment history. You are clearly a very capable man but your whole life has spiralled essentially out of control and you are now back on what I might call the slow comeback trail. Nevertheless I am satisfied that are on that trial. Importantly, I note that the gun was a handmade gun by you. It is not something that you should have owned or should have possessed. But it does not bear comparison with some of the far more dangerous weaponry available although all guns are dangerous inherently.
36But compared, as I said, to other firearms and types of firearms you could have possessed, it does not fall into that more dangerous category. You have terminated your relationship with Ms Babic which in all the circumstances, I regard as positive for both her and you. You enjoy the support of a close, fairly large and law-abiding family and I regard this as an important support for you in the community. In all the circumstances therefore, I am prepared to place you on a community corrections order. Notwithstanding the lateness of your plea you eventually did plead guilty and I note that you did so after quite a struggle if I can put it that way.
37My perception is that it is very hard for you to accept, given the extremely successful man that you had been, the depths, to which your life had fallen. I would imagine it would be extremely hard for a man like you, Mr Camilleri who built up such a good business to find himself in court, to find himself in the bitter family proceedings that you were, to be limited in your contact with your children after putting the effort into them that you clearly had, or to be in the relationship that you now are with your former wife. They are extraordinarily difficult matters to deal with.
38It seems to me that first speed and then methylamphetamine have been ports of call for you, if you like, firstly to give you the energy to do everything you felt that you needed to do. But secondly, to deal with the raft of problems that all descended on you at once from the legal proceedings with Bakers Delight to the legal proceedings with your wife, to the lonely position that you found yourself in and the limited contact you found you had with your children. Ultimately it all became if you like a perfect storm in which you found yourself offending in this way.
39I am satisfied, as I have said that you are on the comeback trail. It is my view that both you and the community stand to benefit by your continued rehabilitation. I understand also that pleading guilty to these charges as I began to say earlier in these sentencing remarks, was a struggle for you. Nevertheless you did it. I make the comment that this was a strong Crown case but nevertheless, I understand personally this was a very difficult thing for you to do and I give you some credit in taking that step.
40To some degree I also understand that this has been a humiliating experience for you both in terms of what you have had to accept now is your life and the way in which you have had to navigate it. That takes some strength of character and after a few shaky starts via the courts through the intervention order system, you seem to have come to that point. In all the circumstances, for the reasons I have outlined, I am satisfied that you do not present a danger to the community. I accept that the offending arose in the context of a very specific but nevertheless overwhelming set of circumstances that no longer exist in your life.
41I am satisfied that in the light of your background and your current situation the principle of general deterrence, there is a requirement that the courts send out a message to people who offend seriously about what they could expect if they decide to behave in the same way. In my view this can be achieved through the punitive aspects of a community corrections order. You have been found suitable for this order. The assessing officer said you were forthcoming, that you answered all questions put to you and admitted that you are still using methylamphetamine about once a month. You have shown your commendable frankness although I hope that use of the drug stops.
42Mr Dillon stated:
'When invited to discuss the charges before the court, Mr Camilleri attributed the offending behaviour to a relationship breakdown and supporting his drug addiction. Mr Camilleri expressed motivation to undergo a CCO to maintain positive changes and better equip himself with harm minimising strategies'.
43Before I place you on the community corrections order, Mr Camilleri I have to explain to you what the conditions are that are attached to that order, all right. They are firstly that you must report to the community corrections office within two days of the making of this order, workings days, that is by Monday of next week. Whilst on the order which will last for 20 months, you must not commit any offence punishable by imprisonment. What that means is you do not have to be jailed for offending.
44If you commit an offence for which theoretically you could be jailed, like stealing a box of matches from Woolworths, theoretically you can go to gaol for that, and that will be a breach. If you breach the order, which - and you will breach the order if you do not abide by all the conditions, you will be brought back in front of me and I will be asked to re-sentence you on this original offending, do you understand?
45Whilst on the order you may not leave Victoria without the permission of the Community Corrections Office. You must report to and receive visits from the Community Corrections Office. You must report any change of address or employment within 48 hours of the making of that change to the Community Corrections Office. You must not attend upon the Community Corrections Office under the influence of drugs or alcohol and you must obey all lawful directions of the community corrections officer. I am going to order that you undertake assessment and treatment for drug rehabilitation. I order that you undertake assessment and treatment for mental health difficulties.
46The reason I am doing that, Mr Camilleri is, as explained to your earlier is that - and I probably did not explain it in quite these terms. You have spent a long time working too hard, using too many drugs, undergoing traumatic change in your life by way of the loss of your business, the legal proceedings, the loss of your marriage, the Family Court proceedings, difficulties with children, the relationship with Ms Babic with respect sounds as if it brought its own traumas with it.
47It seems to me you have a number of mental health issues. By that I do not mean schizophrenia or bipolar, I mean emotional struggles, if I can put it that way, you still have to work through, all right. I am also going to order that you undertake 150 hours of unpaid community work. You are to be under the supervision of the Community Corrections Office and I am going to order judicial monitoring. I am going to see you in three months' time, Mr Camilleri. At that time I will receive a report from Corrections about how you are going.
48The main thing I am going to be interested in is that you have been linked in with the proper services that I have ordered and that you are going and seeing those people, all right? That is what I want to make sure you do. I cannot imagine you being the sort of man, as I said earlier, who particularly enjoys going to psychologists or attending appointments for drug rehabilitation although I note you have done this in the past. But you are going to have to keep doing it. I am also going to order that any hours of rehabilitative treatment you undertake can be deducted from the community work. So that means that I am not - it does not mean all of them but it does mean that a certain number of the hours that you spend with a psychologist or a drug treatment practitioner will come off the 150 hours of unpaid community work. Are you prepared to enter this order?
49OFFENDER: Yes, Your Honour.
50HER HONOUR: Have a seat, sir, while the documentation is prepared. Because I have, I think it is because it is under two years, I do not need to do a s.6AAA declaration.
51MS DUCKETT: No, you do not need to do one, Your Honour.
52HER HONOUR: Thank you.
53MS DUCKETT: Particularly because it is a Corrections order.
54HER HONOUR: Well, if it is over two years, I do.
55MS DUCKETT: Yes, exactly.
56HER HONOUR: Yes, so.
57MS DUCKETT: The other thing ‑ ‑ ‑
58ASSOCIATE: (Indistinct words) months, Your Honour.
59HER HONOUR: 20 months.
60ASSOCIATE: Twenty, yes.
61HER HONOUR: Twenty.
62MS DUCKETT: Your Honour, just for the sake of completeness there was a forfeiture and a disposal order and they have been e-filed so they should be with the court.
63HER HONOUR: Yes, I make the forfeiture and disposal orders sought of me.
64MS DUCKETT: Court pleases.
65HER HONOUR: Thank you. This will a conviction, the community corrections order. Thank you.
66MS DUCKETT: Yes, Your Honour.
67HER HONOUR: I always think that extemporaneous sentences are going to be quicker but they are not really. Thank you. Now, it is going to be in three months' time, could I have a date for the first judicial monitoring in three months' time, 9.30 and you can attend by video. Usually you can do it through the Community Corrections Office you can go there but in these post-COVID days you can probably beam yourself in if you want to, Mr Camilleri, all right?
68OFFENDER: Yep, no worries.
69HER HONOUR: Thank you. It will be at 9.30. I am just writing in the first judicial monitoring date.
70ASSOCIATE: There is 29 July available.
71HER HONOUR: Yes. All right. Thank you very much. Thank you, Mr Camilleri.
72OFFENDER: Thank you, Your Honour.
73HER HONOUR: Your signature is nearly as illegible as mine, Mr Camilleri. A man who does - who was doing it often once I suspect, is that right? Thank you very much. All right, sir, I wish you good luck ‑ ‑ ‑
74OFFENDER: Thank you ‑ ‑ ‑
75HER HONOUR: ‑ ‑ ‑ on that order. You know, I hope it all comes good for you.
76OFFENDER: Thanks.
77HER HONOUR: All right, thank you very much. I thank counsel very much for their assistance in this matter. We will adjourn to 9.30 tomorrow morning, thank you very much.
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