Director of Public Prosecutions v Carbone

[2022] VCC 604

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-21-01011

DIRECTOR OF PUBLIC PROSECUTIONS

v

LORENZO CARBONE

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	08 February 2022
DATE OF SENTENCE:	04 May 2022
CASE MAY BE CITED AS:	DPP V CARBONE
MEDIUM NEUTRAL CITATION:	[2022] VCC 604

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Trafficking in a drug of dependence in a commercial quantity namely, fluorodeschloroketamine an analogue of ketamine, MDMA and eutylone an analogue of butylone– early plea of guilty – role in larger syndicate – principles of parity

Legislation Cited:      Sentencing Act 1991 (Vic); Confiscation Act 1997 (Vic)

Sentence:                  Convicted and sentenced to a total effective sentence of 5 years and 6 months’ imprisonment, with a non-parole period of 4 years.

Section 6AAA declaration: Conviction and total effective sentence of 8 years’ imprisonment with a non-parole period of 6 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr B.Sonnet	Office of Public Prosecutions
For the Accused	Mr P. Dunn QC	Giorgianni & Lawyers

HER HONOUR:

1Lorenzo Carbone, you have pleaded guilty to one charge of trafficking in a drug of dependence in not less than a commercial quantity. This charge encompasses conduct by you between 1 August and 12 September 2019. During that time, you trafficked in drugs of dependence on a regular basis.

2There is evidence that prior to the charge period you were assisting another person, Dominic Luzza, in his drug trafficking business. Before he went overseas for a trip, he offered you a job to collect and drop off drugs for him.  He assured you he would pay you for this. This is not alleged as part of the charged conduct but is background evidence showing that the charged conduct did not occur in isolation.

3Some of the evidence against you is derived from conversations between you and others, including Luzza, on the app Wickr.  On that app you used the handle “lafamiglia777”.

4The charge commences on the 1st of August 2019. On that day you went to Luzza’s apartment in the Docklands and went upstairs to his apartment. You were carrying a plastic bag containing a drug of dependence namely flurodeschloroketamine, which is an analogue of ketamine.  This part of the charge of trafficking is put on the basis that you knew that there was a real or significant chance that the plastic bag contained a drug of dependence.

5You knocked on Luzza’s door and a short  conversation took place during which Luzza said to you “hurry up I've got someone waiting downstairs”.  You did not go into the apartment, but you gave Luzza a plastic bag containing the flurodeschloroketamine and then you left.

6After you left, Luzza mixed bags of white powder on the kitchen bench and then left his apartment with a bag of white powder before returning a short time later without that bag. The prosecution case is that the bag carried outside by Luzza contained a drug of dependence which Luzza trafficked to an unknown person who was waiting outside.

7On 9 September 2019 a person sent you a message using Wickr asking for “blue grenades”, which was a reference to MDMA, and offering to make you rich.  You sent a screenshot of that message to Luzza.  The next day, 10 September 2019, you asked Luzza if you and he could “go get the grenades”.  Luzza added you to another group conversation on Wickr where it was arranged for you to meet with another associate of Luzza to get the “grenades”. Later that evening you travelled to Craigieburn to collect the MDMA.

8On 8  September, Luzza obtained nearly a kilogram of the drug Eutylone, which is an analogue of the drug butylone.  He arranged for you to collect it from his home in Caroline Springs.  He sent you an image of a red rock type substance in a clear plastic bag and said to you, over Wickr, “got kg for us yeah, don’t fuck up bro, Good opportunity get on your feet again”.  You responded “sweet”.  After you had collected that drug from Luzza he sent you a message advising you to take it home and to not drive around with it.  You sent him a photo of the drugs and told him you had already taken them home. 

9The reference you getting on your feet again was a reference to you being in financial difficulties. 

10Over the messages Luzza told you “we’ll start selling tomoz”.  You responded “sweet” and asked him to confirm that he had said you two would go halves in the whole amount and what the sale price of the bags would be.  Luzza agreed you would be going halves together, said that it would be a good “kick start” for you, and confirmed that the drugs were “proper.”

11Luzza also told you that he had already weighed it, that it was a “large” that is a kilogram, and that it would be divided into 36 bags, to be sold for $700 each.  You confirmed that you would thus get $350 each per bag, and then said that you would try to sell the bags for $1,000.  Luzza responded “nah bro don’t” to this suggestion, on the basis that at the lower price you could sell the drugs more quickly.

12At $700 per bag of approximately 28 grams of drug, the total sales would have been $25,200. You were to receive half, that is $12,600.

13On the evening of 11 September 2019 Luzza arranged for you to collect an unknown drug of dependence from another person, directing you over Wickr.  The nature of the drug you collected on this occasion is not known, so this activity is led as context for the trafficking of identified drugs.

14The overall police investigation ended on 12 September 2019.  On that day your home was searched, and the police found the bag of red rock substance which you had collected from Luzza, and which was the subject of the conversation over Wickr about you two going halves.  When this substance was analysed it was found to be 929.9 grams of Eutylone, which is an analogue of butlyone.  The relevant commercial quantity threshold is 500 grams of mixed drug.  The large commercial quantity is 1 kilogram. 

Personal Circumstances

15At the time of this offending you were 30 years old and you are now 32.  Your family is Italian in origin, with your father moving to Australia in 1958 to marry your mother.

16You were born and initially raised in Canberra, where your father worked as a gardener.  You have an older sister, and a younger brother and sister. Your younger sister was diagnosed with a very serious illness in 2020, a source of great concern for you and your family.

17Your counsel described your family as a typical Italian immigrant family with values of family, hard work and morals.  Your father had strict rules for his children and had a temper, although he was not violent.  Your mother disliked guns and disapproved of the criminal activities of members of her family.  You report that you were intrigued by your family’s mafia connections, that you did not see the bad side of that life and thought that it made your family important.[1]

[1]Exhibit D3, Psychological Report by Ms Carla Lechner, clinical psychologist, dated 15 December 2021, page 2 (Report by Ms Lechner)

18When you were around 10 your family moved to Keilor, in Melbourne, where your father’s brother had a business.  For a time your family lived with your uncle, then moved to a home in Hillside, where your parents still live.  You went to a local primary school close to home.  You reported that you did not have any social or behavioural difficulties at school, although you also report that you were expelled during Year 11, had to repeat that year and then completed Year 12 VCAL.[2]

[2]Report by Ms Lechner, page 2

19Your father encouraged you to be involved in soccer which you played very successfully for a time.

20Once you left school you worked in your father’s concreting business for some weeks, and then with a family friend.  You were supposed to start an apprenticeship, which fell through, so you returned to working off and on for your father. 

21You report that between the ages of 25-30 you did not do much, having lost your routine, and started gambling, which began to rule your life.  You started borrowing money from friends and family, as well as from what you describe as loan sharks, and drug dealers.  You report that at the peak of this gambling period you owed more than $200,000.  Ms Lechner said you exhibited the behaviours and symptoms of a gambling disorder.[3]

[3]Report by Ms Lechner,  page 3

22Ms Lechner reports you told her:[4]

he was “stood over” a few times “and that got me into dealing drugs to make money … I always weasled my way out of it … people grabbed me here and there, but I’d beg and cry to get out of it”. He stated that he has found jail a good way to stop thinking about gambling.

[4]Ibid.

23You say that you hid your gambling and drug use from your parents, for example by pretending to have a job when you did not.  This is confirmed by your mother.[5]

[5]Report by Ms Lechner, page 5

24You did not start to abuse drugs until you were in your mid 20’s, going out to clubs with others who were taking drugs, and meeting criminals at the clubs.  You initially thought that this was a glamourous existence, in line with your family history.[6] You started with pills, which progressed to “lots of cocaine”.

[6]Report by Ms Lechner, page 6, paragraph 2

25During your period of drug use two of your close friends committed suicide and a cousin was murdered.  These tragic and traumatic losses added to your mental distress in the years leading to this offending, compounding your concern about the gambling and debts. Your drug use increased, so that you were smoking up to 7 grams of cannabis a day, taking cocaine every 2-3 days, without paying for it.  You used Xanax and Valium. You deny using ice, ketamine, LSD, GHB and heroin.[7]

[7]Report by Ms Lechner,  page 4

26You fell deeply into debt, and it was submitted that it was the need for money that led you to become involved in Luzza’s drug business as a courier/runner.[8]  You told Ms Lechner you were offered the “opportunity” of picking up and delivering drugs, for a couple of hundred dollars payment.  You said you would take out a little of the drugs for yourself.  You knew your actions were wrong but felt you had no other options, in view of your debt.  You told Ms Lechner “I regret the whole thing, every move I made, not listening to my parents, not doing better at school, not working, doing drugs and gambling.”[9]  You are now focussed on your rehabilitation and not letting down your family again.[10]

[8]Report by Ms Lechner,  page 4

[9]Report by Ms Lechner,  page 5

[10]Report by Ms Lechner ,  pages 6-7

27I was told that after your bail was revoked in January 2021 you have detoxified and become a model prisoner, with negative drug screens and holding a position as Induction Billet.

Mental State

28A report was tendered by Ms Carla Lechner, who assessed you in December 2021. In summary, her conclusions were that you presented with:[11]

(a)   Symptoms of Gambling Disorder, Cocaine & Cannabis Use Disorder (DSM 5), all in remission in a controlled environment; and

(b)   Symptoms of depression at a clinical level, in addition to a high level of anxiety, mostly reactive to your current situation but of sufficient severity to warrant a diagnosis of Adjustment Disorder with Mixed Depression & Anxiety (DSM 5).

[11]Report by Ms Lechner page 1, page 6 paragraph 1

29She considered you presented as being of average to low average intelligence, and that in recent years your ability to think things through and understand the consequences of your actions was undermined by your drug abuse and “high level of emotional arousal”.[12]  Your focus was on getting money to gamble and pay your debts.  You used drugs to block out internal distress.  When interviewed you were better able to self-reflect, being free from drugs.[13]

[12]Report by Ms Lechner,  page 4

[13]Report by Ms Lechner page 6 paragraph 3

30When Ms Lechner interviewed you, she administered tests to assess presence of symptoms of anxiety and depression in the 2 and 4 weeks before the examination.  The scores were indicative of you being likely to be severely psychologically distressed, and in the extreme range of depression.[14]  You attributed this in part to the challenges of custody particularly in view of the frequent lockdowns and absence of access to therapeutic programs.[15]

[14]Report by Ms Lechner  pages 4-5.

[15]Report by Ms Lechner page 6 paragraph 3

31Ms Lechner considered you need support to abstain from drugs and gambling once released from custody, and that you would benefit from psychological support to address your unresolved grief and to develop better strategies for managing stress and your mood. 

32Whilst your counsel relied on your mental state at the time of the offending in the written submissions,[16] this was properly not pursued in the oral submissions on the plea. 

[16]Defence Plea Submissions dated 4 February 2022, paragraph 5

Plea of Guilty

33You have pleaded guilty to this charge which is a significant factor in mitigation.  The matter resolved approximately one month after you were committed for trial, and you were arraigned on 1 July 2021.  I will treat this as a relatively early plea of guilty which has significantly facilitated the course of justice, particularly in the context of the effect of the pandemic on the operations of the court for conducting trials.

34You have been on remand over the time when the pandemic has had a significant impact on persons in custody, affecting the activities available to prisoners, time out of cell, and contact with friends and family.

35Whilst in custody you have had no positive urine screens, and have completed vocational courses and the course “Cannabis and Me” but few other opportunities have been available for courses.[17]

[17]Report by Ms Lechner,  page 5

36I accept that your plea of guilty is also a reflection of your regret for your offending, and take into account also your expressions of remorse to Ms Lechner.

Prospects of Rehabilitation

37At the time of the offending, you were subject to a community correction order, which had been imposed on 31 May 2019, for offences including trafficking in cocaine, and MDMA, committed in 2017.  That CCO included conditions for assessment and treatment for drug abuse or dependency, and to address your mental health.  Whilst I am not dealing with you for breaching that CCO, I note that your compliance with it was poor and that you failed to attend numerous appointments.  You also committed offences other than the matters before me whilst subject to that CCO.  The fact that you were on a CCO shows your disregard for Court orders, and your failure to comply with the rehabilitative aspects of the order is relevant to your prospects of rehabilitation.

38You were remanded in custody on 12 September 2019, then released on bail on 14 January 2020.  Part of your bail conditions were that you take part in an out-patient drug treatment program which included weekly appointments for counselling and twice weekly urine screens.  Over the course of 2020 you failed to comply with the requirements of that program repeatedly, worsening later that year. From October 2020 your solicitors were told that revocation of bail proceedings were in contemplation.  Various reasons were presented by your solicitors for your failure to comply with the program.  In November 2020 you were ultimately exited from the program due to your lack of participation and commitment.  You did take part in some counselling with another drug counsellor over December and January 2021 and provided urine screens.  One of these was positive for “sympathomimetic amines”.  The revocation proceedings continued, and you were remanded in custody again on 28 January 2021.  The $100,000 surety attached to your bail was revoked, although fortunately for your surety this amount was reduced in March 2021 to $10,000.

39Whilst you told Ms Lechner you were not using drugs when you were on bail, a different position was put in submissions on the plea.  Your failure to comply with your bail is a relevant consideration in assessing your prospects of rehabilitation. Your inability to remain drug free, even with court ordered counselling and treatment, demonstrates the real difficulties you face on staying drug free once released from prison.

40I consider that despite your history of breaching a CCO and your bail you have reasonable prospects for rehabilitation, but your ability to stay out of trouble with the law will depend on whether you can keep away from gambling and drugs.

Parity

41The charge to which you have pleaded guilty includes the arrangement to sell the Eutylone with Luzza.[18]  Luzza has pleaded guilty to a charge of trafficking in not less than a commercial quantity in respect to that arrangement with you.  The charge to which you pleaded guilty involves other trafficking over a longer period of time than Luzza’s related charge.  I note the following points of similarity and difference between you:

(a)   In respect to the overlapping conduct, the trafficking of Eutylone, you were subordinate to Luzza, although you were to go equal shares in the proceeds of sale;

(b)   You were on a CCO at the time of this offending, for conduct including trafficking cocaine and MDMA;

(c)   Luzza has no prior convictions for trafficking drugs, although he has previously served prison sentences for other offending;

(d)   You both were using drugs and gambling at the time of the offending.  Your personal circumstances are not significantly dissimilar; and

(e)   The proceedings against you resolved a month after you were committed for trial, whereas Luzza’s matter resolved at committal. 

[18]Luzza Charge 6, Commercial Quantity trafficking between 7 and 12 September 2019

Other Sentencing Factors

42In addition to your personal circumstances and the factors in mitigation, I am required to take into account the need for general and specific deterrence, denunciation of your offending, protection of the community and to impose a sentence which amounts to just punishment.  I must impose a sentence which is no more severe than is required to reflect the sentencing facts and purposes.

43I must take into account the maximum penalty for the offence, which is 25 years’ imprisonment.

44As to the gravity of the offending, in summary, you committed this offence by:

(a)   Delivering an unknown amount of the drug flourodescholorketamine to Luzza on 1 August 2019;

(b)   Receiving a request for MDMA on 9 September 2019 and arranging through Luzza to obtain and collect that drug, in an unknown quantity;

(c)   Agreeing with Luzza over 8 to 9 September 2019 to sell between you 929.9 grams of Eutylone.

45These acts occurred in the context of you having an existing trafficking relationship with Luzza, and in the context of other trafficking in drugs which have not been quantified or identified.

46Your role in this offending was subordinate to Luzza, who was the person obtaining the drugs which you distributed.  It is unclear whether the order for MDMA was from an existing client of Luzza, with you as the go-between, or if this was a new customer to whom you were able to provide drugs using your connection to Luzza. 

47You were being paid for your role, and in respect to the Eutylone this payment was not simply for jobs done, but to go halves in the proceeds of sale.  That this was clearly discussed suggests that this agreement was not the usual arrangement for the other trafficking you engaged in with Luzza. 

48Mr Dunn QC submitted on your behalf that having regard to your role and limited offending, that the time you have served sufficient time in custody.  I cannot accept that submission.  During the charge period you engaged in trafficking multiple types of drugs, you took an active role and were an active participant in this trade.  Whilst you were subordinate to Luzza you were trusted by him.  Your payment was to include going halves in the sale of nearly a kilogram of Eutylone. Whilst Luzza was aware of your financial difficulties his use of you in his trafficking business does not appear to me to have been predatory, rather he offered you the opportunity to make money which you were willing to do.

49Furthermore, in respect to the Eutylone, the quantity you had in your possession, and which was planned to be sold, was just under the large commercial quantity threshold of 1 kilogram. 

50It is often observed by the courts that trafficking enterprises rely on people such as yourself who are willing to assist in trafficking by moving and storing drugs.  General and specific deterrence, denunciation and just punishment remain powerful factors where the role of the offender is so characterised.  Furthermore, your role in respect to the Eutylone was that you were going to participate in the sale of the drugs, and be an equal receiver of the sale moneys.  

51I note that in the plea of Mr Luzza it was submitted that the sale price of the Eutylone was more comparable to the profits obtainable by the sale of 1,4 Butandiol and GHB, than drugs such as methylamphetamine.   Whilst on his plea there was evidence that the profits on sale of the Eutylone were not in the hundreds of thousands of dollars, they were not at the low level seen in respect to 1, 4 Bd and related substances.  The impact on your plea of this is minimal.  You did not purchase the drugs, were usually paid for jobs done, and you were to be the recipient of half the funds in respect to the Eutylone, by reason of Mr Luzza helping you out.

52When considering current sentencing practice and the sentences imposed in other cases, the principal factors of comparison are your role, the period of offending, that you have pleaded guilty, and the weight of the drugs involved by ratio to the commercial quantity threshold.  To inform myself of current sentencing practices I have reviewed the case summaries prepared by the Judicial College of Victoria, in particular those under the heading “7.3.1.2 – Court of Appeal recent cases (2020-present)”.[19]

[19]Judicial College Victoria, Victorian Sentencing Manual Case Summaries ‘7.3 Trafficking in a drug of dependence in a commercial quantity’ < >

53It was not submitted on your behalf that any of the exceptions under s5(2H) of the Sentencing Act apply.

54On the charge of trafficking in not less than a commercial quantity you are sentenced to a term of imprisonment of 5 years and 6 months’.  I set a non-parole period of 4 years.

55I declare that you have already served 586 days by way of pre-sentence dentition, and I direct that declaration be entered into the records of the court.  

56Pursuant to section 6AAA of the Sentencing Act 1991 (Vic), I state that if you had not pleased guilty, I would have sentenced you to 8 years’ imprisonment with a non-parole period of 6 years.

57I will make the forfeiture order by granting leave pursuant to s32(2) and (3)(c) of the Confiscation Act and make the order in respect to the five mobile telephones listed.  I will also make the disposal order in relation to the 29 items listed in the schedule.

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