Director of Public Prosecutions v Carminati
[2013] VCC 1902
•21 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-12-01967
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAX CARMINATI |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November 2013 | |
DATE OF SENTENCE: | 21 November 2013 | |
CASE MAY BE CITED AS: | DPP v Carminati | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1902 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Theft – Handle stolen goods – Possess drug dependence – Plea of guilty
Legislation Cited: Drugs Poisons and Controlled Substances Act 1981; Crimes Act 1958; Firearms Act 1996
Sentence: Total Effective Sentence 5 years 10 months’ imprisonment with non-parole period of 3 years 4 months’ imprisonment – Pre-sentence detention 562 days – s.6 AAA Sentencing Act 1991 declaration
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Saunders | Solicitor for Office Public Prosecutions |
| For the Accused | Mr R. Backwell | Lewenberg & Lewenberg |
HER HONOUR:
1 Max Carminati, you have pleaded guilty to the following charges:
(a)two charges of burglary;
(b)three charges of theft;
(c)one charge of handling stolen goods;
(d)three charges of trafficking in a drug of dependence;
(e)one charge of possession of a drug of dependence;
(f)one charge of possession of a precursor chemical; and
(g)three charges of being a prohibited person in possession of a registered firearm.
2 Further, you have pleaded guilty to the following matters which were uplifted from the Magistrates’ Court:
(a)knowingly possessing an explosive substance;
(b)unauthorised possession of ammunition;
(c)two charges of being in possession of a controlled weapon;
(d)nine charges of being in possession of a prohibited weapon;
(e)two charges of being in possession of a Schedule 4 poison.
3 The maximum penalty for burglary and theft is 10 years' imprisonment; for handling stolen goods, trafficking in a drug of dependence and being a prohibited person in possession of an unregistered firearm – 15 years' imprisonment; for possession of a drug of dependence - 5 years’ imprisonment or 400 penalty unit fine unless Defence satisfy me on the balance of probabilities that the possession was unrelated to trafficking; if so satisfied the maximum penalty is 1 year’s imprisonment and/or a 30 penalty unit fine. The maximum penalty for possession of a precursor chemical – 5 years' imprisonment.
4 The maximum penalties in relation to the matters uplifted from the Magistrates Court are:
5 Knowingly possessing an explosive substance – 10 years' imprisonment.
6 Possession of ammunition – 40 penalty units.
7 Being in possession of a controlled weapon – 1 year's imprisonment or 120 penalty units.
8 Being in possession of a prohibited weapon – 2 years' imprisonment or 240 penalty units.
9 Being in possession of a Schedule 4 poison – 10 penalty units.
10 The most lengthy Summary of Prosecution Opening is to be annexed to my sentencing remarks and I incorporate it into my sentencing remarks.
11 However, I shall refer to the facts in a briefer form in setting out my sentencing reasons.
12 The learned Prosecutor referred to the various buildings and facilities at Docklands, where a number of your offences took place. I was told that in addition to an apartment, residents are entitled to a car park situated in Docklands Drive and are also entitled to an allocated storage locker situated in the car park area. Access to the apartments and car park is gained by the use of a swipe card.
13 I was told that at the time that you offended, you were 36 years old and that you have two daughters who at that time were 17 and 12 years old. You commenced tenancy at Unit 240, 9 Wharf Street, Docklands and relocated to that address on 17 November 2011. Before this, you were a tenant at Unit 227, 9 The Arcade, Docklands and lived here between 5 February 2011 and 17 November 2011.
14 The victims in relation to Charges 1, 2 and 3 on the indictment are Xiaoqing Yu and Tan Liu. They lived at Unit 223, 9 The Arcade, Docklands. Ms Yu had bought the apartment with her mother in May 2009.
15 On 31 October 2008, Ms Yu purchased a 2008 black Audi TTS sedan for $105,000 from Melbourne Audi Centre, Swanston Street, Melbourne. When the car was purchased, it was registered as XRU-311 and on 13 April 2011 the car was transferred into Tan Liu’s name without being reregistered. The car was always parked in allocated parking bay number C96 in the secure car park in Docklands Drive.
16 On Wednesday 1 September 2010, Ms Yu left Australia and travelled to China to visit her family. On Thursday, 16 June 2011, Tan Liu left Australia for travel to China on business and also to see Ms Yu. When he left the apartment that he and Ms Yu occupied, it was locked and contained all of their combined property and personal belongings. Liu left the Audi in the allocated car parking bay and left a set of car keys for the car on the kitchen bench in their apartment.
17 Between 16 June and 3 October 2011, you, using unknown means, gained entry into these victims’ apartment. You removed their property and belongings and you also removed the car keys for the Audi motor vehicle. You then placed the victims’ belongings in your apartment and gave some items away as gifts.
18 On Monday, 3 October 2011, you used the Audi keys to gain access to the victims’ car, driving it to a factory in Clayton with the intention of obtaining a certificate of roadworthiness. You presented the car to a Mr Giokas and provided him with your driver’s licence which gave an address as Unit 240, 9 Wharf Street, Docklands. Mr Giokas conducted a roadworthy assessment of the car and issued you with a certificate of roadworthiness.
19 On 17 October 2011, you asked a co-offender, Mr Varano, to attend Vic Roads in Carlton and transfer the Audi into your name and also to purchase new registration plates for the car. You gave Mr Varano about $2,000 and a certificate of roadworthiness which you had just obtained. You completed the seller and buyer details on a Vic Roads application for transfer of registration form and gave this to Mr Varano with the application form. You signed the buyer section of the form, indicating that the information provided was true and correct, that the car was to be registered in your name. A letter of authority to transfer the car on your behalf was completed by Mr Varano and signed by you. Later this day, Mr Varano attended Vic Roads and produced the documents with which you had provided him. As a result of this, the car was transferred into your name. You declared that the car was purchased for $37,000 and Mr Varano paid $1,513.60 on your behalf for transfer fees and motor vehicle duty. He could not buy the registration plates and returned to obtain a letter of authority to purchase these on your behalf. Mr Varano completed this letter which was signed by you.
20 On this same day, Mr Varano then returned to Vic Roads and was assisted by Vic Roads staff to purchase the registration plates, being YQX-214.
21 On Friday, 21 October 2011, Mr Varano contacted Audi Centre in Swanston Street, Melbourne on your behalf, requesting to purchase two code keys for an Audi TT sedan. He provided the sales representative with a VIN number, placed an order for the keys, which cost $764.24. On 31 October 2011, Mr Varano contacted the Audi Centre and made a booking for a lock recode and advised you of this booking.
22 On Wednesday, 2 November 2011, you arranged for a tow truck to pick up the Audi sedan from an unknown location and to take it to the Audi centre. Mr Varano gave a customer name as Mr Adrian Varano of Unit 240, 9 Wharf Street, Docklands and provided two mobile phone numbers. That same day, you and Mr Varano went to the Audi Centre and you made a cash payment for the code keys totalling $764.25. You asked that the code keys be recoded to the Audi which restricted any other key from being used to start the car. You signed the Audi Centre repair order and made a cash payment of $176.00. The car was returned to you.
23 On Wednesday, 30 November 2011, the victims tried to return to their home. They noticed that their mail box was broken and had been emptied of mail. The front gate to their unit was unlocked and the locking mechanism was missing. However, there was a dog in their front yard which had previously been seen in the front yard of premises occupied by you. The victims tried to open the front door of their unit with their keys but these no longer worked. Mr Liu rang the door bell and a young unknown female answered the door. When Mr Liu said that he was the owner of the premises, the young female closed the door and locked it.
24 The victims went to the office of the building manager, John Disisto, which was on the same floor as their allocated parking bay. They noticed that their car was no longer parked where Mr Liu had left it. The victims saw a blue coloured coupé in the parking spot. Mr Disisto told the victims that their car was parked downstairs in parking allocated for Unit 240, 9 Wharf Street, Docklands.
25 The victims attended the car park downstairs and saw their car, noticing that the registration plates had been changed. Mr Liu tried to open the car without success. He opened the door manually and noticed numerous items in the car which did not belong to him or Ms Yu. He attempted to start the car but it would only start then stop.
26 The victims returned to Mr Disisto’s office, who then said that there was a person driving their car out of the car park, as he could see this on the CCTV footage for the car park exit. Mr Liu ran downstairs to the car park and saw you swiping an access card to leave the car park. He ran to the passenger door of the car but you drove off at speed. You were wearing a grey woollen cap and sunglasses.
27 You drove the car to Wilson Parking at Southern Cross Station, Spencer Street, Melbourne and parked it on the first level of the car park. The victims returned to their apartment and knocked on the door, demanding to be allowed in but entry was refused by a different young female. The victims contacted police, who arrived shortly thereafter and they attended Unit 223. Police knocked on the door and a young female with pink hair (the first female to answer the door to the victims when they first arrived), allowed the police in together with the victims. The victims observed that different furniture was in the apartment and also noticed that numerous items of furniture and appliances belonging to them were missing. The occupants of Unit 223 were arrested by police; they turned out to be Tania Carminati born 22 December 1973; I understand that this person is your ex-wife. Also arrested were Alyssa Carminati and Anna Louise Carminati, your daughters, as well as a Hannah Greatorex.
28 The items which you stole are listed in Schedule A, which is annexed to the indictment. There are 40 items listed in the schedule and these range from personal documents and belongings to items such as a Bose sound system, a computer, as well as clothing and personal accessories. A number of these items would appear to be of considerable value.
29 In relation to Charges 4 and 5, I was told the victims in relation to this burglary and theft are a Belinda Lai and Allison Lai, who lived at Unit 222, 9 Wharf Street, Docklands. On Thursday, 4 August 2011, they left Australia and travelled to Hong Kong to visit their family. They left their apartment locked and secured and Allison Lai left her grey BMW in an allocated parking bay in Docklands Drive. She left a set of car keys inside her unit. They covered the car with a BMW car cover before leaving. During September, Belinda Lai returned to Unit 222 and stayed for a short time before again leaving Australia for Hong Kong. Between 30 September and 30 November, you used unknown means to manipulate the lock on the front sliding door and gained entry into the victims’ apartment. You removed their combined property and belongings and relocated these to your residence. Again, the items which you stole are set out in a schedule and include items of a most private nature such as a will and other legal documents as well as bank records and documents for the victims’ car.
30 You went to the secure car park and used the keys which you found at the premises to enter Ms Lai’s car. You removed the BMW car cover from it and you also removed the service books from inside.
31 On Monday, 5 December 2011, police attended these victims’ unit and confirmed that it had been burgled. They saw that the front door was unlocked and that the front sliding door was unlocked, with a screwdriver on the floor beside it. Inside the apartment, police saw that the rear sliding door had the glass around the lock broken and that there were muddy footprints on the floor. There was a filing cabinet which had drawers opened, along with bedside table drawers and a bedroom cupboard door. Police spoke to a friend of the victims who said that the car cover had recently been removed from the car and that their mail had recently been cleared from their letterbox. The police found the BMW car cover and service books in the Audi which you had stolen.
32 On Wednesday, 7 December 2011, the victims returned to their apartment and were contacted by police in relation to the burglary. They attended the Melbourne West Police Station and advised police of the items which had been stolen from their apartment. These totalled $21,250. They also identified various items which were seized as a result of warrants executed, as being items stolen from their home.
33 You were arrested on 30 November 2011 as you were leaving your residence at 9 Wharf Street with your girlfriend, a Ms Katherine Kavadis.
34 When you were arrested, you were in possession of $1,110 cash, a knife and various keys. Your girlfriend was in possession of two Audi motor vehicle electronic entry and ignition keys. Police found a BMW motor vehicle key which was later used to gain entry to the BMW owned by Allison Lai. Ms Kavadis was arrested and both you and she were taken to the Melbourne West Police Station.
35 Later that day, two of your associates were spoken to by police at your home address. They were Mr Varano and a Mark Dispenzeri.
36 On Thursday, 1 December 2011, you accompanied police to your apartment and the storage locker allocated to you in Docklands Drive. A search warrant was executed under the Drugs Poisons and Controlled Substances Act 1981 and police seized a number of items. They then attended Wilsons car park at Southern Cross Station and saw the Audi which you had stolen – it was parked in a parking bay in the car park on the second level. They searched the car and seized various items. The car was returned to the police station.
37 Items which were seized included the following:
(a)two sets of digital scales;
(b)a knife;
(c)tablets containing Valium;
(d)numerous snap lock bags, documents and property in relation to Charges 4 and 5 - these items which are set out in Schedule C are the basis for Charge 6 on the indictment, dishonestly receiving stolen goods;
(e)firearms;
(f)tablets labelled Xanax which were analysed and found to contain Alprazolam;
(g) numerous “ice” pipes;
(h)a roadworthy certificate and other documents concerning the Audi motor vehicle;
(i)12.8 grams methylamphetamine – this gives rise to Charge 7, a charge of trafficking in a drug of dependence;
(j)96.7 grams of Methorphan – this gives rise to Charge 8, trafficking in a drug of dependence;
(k)631 grams of cannabis L. – this gives rise to Charge 9, a further charge of trafficking in a drug of dependence;
(l)0.6 grams of heroin, giving rise to Charge 10 – possession of a drug of dependence;
(m)plastic bottles and fuel cans containing a total of 12,527 millilitres of the precursor chemical 1,4 butanediol – this gives rise to Charge 11 – being in possession of a prescribed precursor chemical in a quantity not less than the prescribed quantity;
(n)an Enfield brand model 184 single shot shotgun, giving rise to Charge 12 – being a prohibited person in possession of a firearm which was unregistered;
(o)an automatic rifle – .22 calibre, which gives rise to Charge 13 – being a prohibited person in possession of a firearm which was unregistered; and
(p)an imitation AK-47, which gives rise to Charge 14 – being a prohibited person in possession of an imitation firearm which was unregistered.
The following items were also seized and give rise to the Summary Charges:
(q)fireworks, which gives rise to Charge 64 – knowingly being in possession of an explosive substance;
(r)two shotgun pellets, giving rise to Charge 65 – being in possession of ammunition;
(s) multi tool knife in a black pouch – giving rise to Charge 74 – possession of a controlled weapon without lawful excuse
(t)a Dexter Russell butcher’s knife in scabbard and a knife with a black handle – giving rise to Charge 75 – being in possession of controlled weapons without lawful excuse;
(u)one M1911 black imitation hand gun – giving rise to Charge 76 – being in possession of a prohibited weapon;
(v)a semi-automatic pistol with ammunition magazine – giving rise to Summary Charge 77 – being in possession of a prohibited weapon;
(w)a knuckle duster – giving rise to Charge 78 – and a black Taser in pouch – giving rise to Charge 79. These are both charges of being in possession of a prohibited weapon;
(x)two extendable batons – giving rise to Charge 99 – being in possession of a prohibited weapon;
(y)a flick knife – giving rise to Charge 101 – being in possession of a prohibited weapon;
(z)two Samurai swords which are the bases for Charges 102 and 103 – being in possession of a prohibited weapon; and
(aa) another flick knife – giving rise to Charge to 104 – being in possession of a prohibited weapon.
38 The victims, Liu and Yu, attended your residence and storage locker, and indicated which items belonged to them.
39 On 1 December 2011, a little later in the day, police executed a warrant under the Drugs Poisons and Controlled Substances Act 1981at a storage unit at Fort Knox Self Storage in Spencer Street, Melbourne West and seized a number of items.
40 On 2 December 2011, police attended your residence and executed a search warrant under s.465 Crimes Act 1958. They seized a number of items, including an Apple Mac Book laptop and power cord, a black computer hard drive, a further Apple Mac Book laptop and a black Toshiba laptop as well as one Apple iPad. I was told that some of these items are contained in the relevant schedule attached to the indictment.
41 At the time of the offending, you were not licensed to own a firearm and you were a prohibited person, obviously, as defined by the Firearms Act 1996.
42 Mr Carminati, the offences which you have committed are serious and deserving of appropriate punishment and denunciation. In particular, the burglaries and thefts which you committed which are the subject of Charges 1 to 5, are serious examples of these offences. You invaded the sanctity of the two different homes and helped yourself to numerous belongings of those who lived there. Moreover, in relation to the first burglary, which is the subject of Charge 1, you installed members of your family in the premises and went to elaborate lengths to assume ownership of the victims’ motor vehicle. Your conduct was brazen and most concerning. Mr Backwell described your offending as bizarre in circumstances where it would seem that your detection was inevitable.
43 Your recourse to criminal offending commenced fairly late in life, which is somewhat unusual: On 29 October 2009, you were dealt with at the Sunshine Magistrates’ Court for the following offences:
44 Traffic ecstasy;
45 Fail to answer bail;
46 Possess ecstasy;
47 Possess amphetamine;
48 Two charges of dealing with property suspected to be proceeds of crime;
49 Use ecstasy;
50 A number of driving offences, including driving whilst authorisation was suspended; and
51 Possess controlled weapon without excuse.
52 On that occasion you were convicted and sentenced to 6 months' imprisonment to be served by way of an intensive corrections order and received fines in relation to the driving offences and possessing the controlled weapon.
53 On 8 February 2011, you were dealt with for failing to comply with the intensive corrections order which resulted in a variation of it. Unfortunately, the intensive corrections order has not served to rehabilitate you.
54 Further, you have relevant subsequent matters for which you were sentenced to 4 months' imprisonment on 26 October 2012. Mr Backwell told me that on that day you were dealt with for the following matters: recklessly cause injury, make threat to kill, traffic ecstasy, traffic methylamphetamine, possess amphetamine, possess cocaine, traffic prescription drugs, as well as other drug offences. You were also dealt with for being a prohibited person in possession of an unregistered firearm and handling stolen goods.
55 There was a further subsequent court appearance on 7 February 2013 for possess methylamphetamine and dealing with proceeds of crime. You were sentenced to 2 years' imprisonment which was wholly suspended for 12 months.
56 It appears to me that your level of offending has escalated from your first episode of offending – indeed, as Mr Backwell remarked, by the time you were arrested, you were out of control. As he said, even a short period on remand did not see you change your ways because when you were released on bail, you reoffended, which is the subject of the subsequent matters to which I have just referred.
57 I was told that the decline in your conduct is attributable to a chronic drug addiction. Since you have been on remand on this occasion, however, you have addressed your drug problem, which was evidenced by a number of clear urine screens tendered at the plea. You have been made head chef at the Metropolitan Remand Centre, which is an indication as to how well you are regarded in the prison system. This was also evidenced by the fact that you were given permission to attend your granddaughter’s funeral very recently.
58 I was told that you started using drugs when your marriage ended in late 2007. You commenced to smoke amphetamine and in the years that followed your drug use escalated. By the time you were arrested, you were apparently using whatever drug you could obtain. You reported to Mr Bernard Healey, clinical psychologist, that just before you were arrested, you were using up to 1 ½ ounces of amphetamine per day.
59 You withdrew from drugs whilst at Metropolitan Assessment Prison, reportedly spending 21 days in a padded cell, during which time you experienced hallucinations and a good deal of suffering. Eventually, you immersed yourself in work and physical activity, and completed a number of courses in a bid to broaden your capacity to work when you are released from jail. I have received a significant number of certificates which attest to this. I was told that it was in the context of your raging drug abuse and associating with criminal associates that the offending took place.
60 While your offending was somewhat bizarre and somewhat explicable because of your drug abuse, you were not so addled by drugs that you were not able to effect rather sophisticated burglaries and thefts on two apartments, and, together with an associate, take elaborate steps to make the Audi motor vehicle your own. Further, you were able to house a treasure trove of items in various locations and set yourself up in a rather luxurious apartment. You were not so ravaged by drug use that you were living rough on the streets committing offences to obtain the next fix, as is often the case. It appears to me that you were living the high life and you had also treated your family to such an existence. You also were found to be in possession of a number of weapons which has given me some cause for concern. This is especially so in circumstances where you knew very well you were not permitted to be in possession of any of these in light of your criminal history and in some cases, because you were a prohibited person. I understand that the firearms in your possession were not in working order and was told that you had the array of weapons as you liked to collect these. I must say that I find this very difficult to accept, given the array of weaponry which included a Taser and in light of the fact that you knew very well you were not to be in possession of any weapons. As I said in discussion with your counsel, these are the sorts of tools of trade that drug traffickers have; a firearm need not be in working order or real to threaten people – however, I put my suspicions in this respect to one side.
61 In relation to the drug offences, it may be that you imbibed a variety of drugs, however, you were found to be in possession of a number of drugs for sale and you were also found to be in possession of a precursor chemical, which again, gives me cause for concern. I factor in that the trafficking charges arise on the basis of the quantity of the drugs found but your Counsel did not press that these were simply for personal use.
62 Incredibly, having been arrested and released on bail for the offences for which I now sentence you, you embarked on similar offending, which gives me some cause for concern for your prospects of rehabilitation and for protection of the community. I was told that your escalating drug use led to an escalation in your offending but that having been in custody for 22 months now, you have been able to return to a better self which predated your drug abuse. In this regard, I was told that you had a solid work history up until late 2010 when your drug use commenced to impact on your daily functioning. You had retained the one occupation for about five years but you lost this job in late 2010 as you were not longer able to properly function. From there, your life spiralled out of control- although, as I understand it, this had commenced when your marriage broke down.
63 By way of background, I was told that your parents separated when you were seven years old. Your father did not want any contact with you, which, no doubt, had a negative impact on you. You lived with your mother and her parents and your grandfather became your father figure. You had a very close relationship with him as you were growing up. Unfortunately he is now terminally ill which is reflected in a letter tendered to the Court from his general practitioner dated 14 November 2013.
64 You completed Year 12, then commenced tertiary education. However, when you found your partner was pregnant, you had to leave your studies and obtain a job. Your solid work history commenced at this time and, as I have said, endured until drugs intervened. You have worked in various occupations for periods of between five and seven years, going from one job to another.
65 As well as completing a number of courses whilst in jail to maximise your employability upon your release, you have also completed drug and alcohol courses.
66 As head chef at the Metropolitan Remand Centre for the past four months, you have cooked for 750 people per day. I understand that you are very proud of this, and rightly so. Your pre-drug use work ethic has re-emerged.
67 Your ability to stay out of trouble much depends on your ability to remain drug-free in the future and to stay away from criminal associates. If you do not, you can expect to be spending ever increasing periods of your life in jail.
68 PRISONER: Yes, Your Honour.
69 HER HONOUR: I put you on notice, Mr Carminati, that there is a link between your criminal offending and drug abuse. If you choose to take drugs in the future and commit criminal offences in this context, then your decision to take drugs may well be seen as an aggravating feature by a sentencing judge in the future- a copy of these sentencing remarks would, no doubt, be read by any sentencing judge involved in future proceedings. Do you understand that?
70 PRISONER: Yes I do, Your Honour.
71 HER HONOUR: You have the support of your mother, who was in Court at the plea hearing and I see is also present today. You also have the support of your children. Your children were inhabiting one of the apartments which you burgled illegally and seemed to be privy to your offending. It is to be hoped that their support nowadays involves a recognition by them that what you did was very wrong. It is to be hoped in the future you are a positive role model for them.
72 I take into account that you are close to your family and that time in jail has and will be harder for you than for someone without these close ties. In particular, you oldest daughter has sadly just lost her one day old child and you are suffering a good deal of anguish at not being able to be around for her. I also take into account that this is your first period in gaol.
73 Further, I factor in your pleas of guilty which were entered at the directions hearing stage in this Court. The pleas were entered in the context of numerous discussions between legal representatives which took place after an initial directions hearing. There was a contested committal hearing which is your right and you are not to be punished for this. However, the discount which you would receive in pleading guilty will not be as great as it would have been had you entered pleas before committal. However, in circumstances where you were initially facing hundreds of charges and a trial would have been lengthy and complicated, you are entitled to a discount in the sentence that you would otherwise receive which is not insignificant as you have saved the witnesses the time and trauma of giving evidence at trial and you have saved the community significant time and expense of running contested proceedings.
74 I am also satisfied that your pleas of guilty and expressions of remorse are genuine, although I also factor in the protracted nature of your offending and the fact that you did choose to contest some matters at the committal stage on the question of remorse. Remorse is always a complex issue and on balance I accept that you have some genuine remorse for your offending and you are taking steps to address your behaviour, which is a further expression of it, as is the letter which I received today from you.
75 I take into account that you have now been in prison for 22 months, four months of which cannot be factored as pre-sentence detention as you were serving a sentence for the matters to which I have previously referred. However, from a totality perspective, I have taken into account that you have been in jail for nearly 22 months already.
76 There is no impairment of mental function which you were suffering at the time which would reduce your moral culpability for this offending which I consider is high. Further, in light of your prior convictions and subsequent matters, but also taking into account that you have been drug-free for a significant period now, I find that your prospects of rehabilitation are fair. I place fairly substantial weight on specific deterrence in these circumstances, as I do, on the need to protect the community. I must impose substantial weight on general deterrence in a bid to deter others from offending as you have.
77 The Crown submitted that a sentence of between 5 ½ and 7 ½ years with a non-parole period of between 4 and 5 years was appropriate in your case. Mr Backwell submitted that this range was excessive and submitted that a head sentence in the realm of 4 to 5 years with an appropriate non-parole period was warranted.
78 Having considered counsels’ submissions on sentence and the weight which I must attach to all relevant sentencing considerations, and having had regard to totality, I have arrived at a sentence which, in my view, does justice to all relevant matters. In circumstances where you had been abusing drugs and the quantity of heroin involved in relation to the charge of possession of heroin, I am prepared to sentence you in relation to that charge on the basis that this was not related to trafficking and so the lesser maximum penalty will apply. While your offending is serious, I have come to the view that appropriate weight can be given to all relevant sentencing considerations by imposing a head sentence at the lower end the Crown range and a non-parole period which is somewhat lower than that agitated for by the Crown. I have done this in order to give you some sense of a light at the end of the tunnel in terms of a non-parole period which will hopefully serve to encourage you to continue with your rehabilitation.
79 Would you please stand up?
80 Firstly, I make ancillary orders. I make the orders for forfeiture, disposal and restitution in accordance with the documents provided to the court by the prosecution. These orders are not opposed by you. I make an order for a forensic sample to be taken from you being a swab of saliva to be taken from your mouth. I make the order because it is not opposed, because of your prior convictions, because of the seriousness of your offending and because it is in the public interest to make the order. I should warn you that if you do not cooperate with the making of this order the authorised officer may use reasonable force to ensure your compliance.
81 You are sentenced to the following terms of imprisonment. Firstly in relation to the charges on the indictment:
82 Charge 1 – 3 1/2 years imprisonment –this will be the base sentence
83 Charge 2 – 2 1/2 years imprisonment.
84 Charge 3 – 18 months imprisonment.
85 Charge 4 – 2 years imprisonment.
86 Charge 5 – 2 years.
87 Charge 6 – 3 months.
88 Charge 7 – 12 months.
89 Charge 8 – 2 years.
90 Charge 9 – 15 months.
91 Charge 10 – 3 months.
92 Charge 11 – 12 months.
93 Charge 12 – 12 months.
94 Charge 13 – 12 months.
95 Charge 14 – 6 months.
96 In relation to the summary offences, you are convicted and sentenced as follows:
97 Charge 64 – 1 month.
98 Charge 65 – you are fined $500.
99 Charge 74 – 3 months.
100 Charge 75 – 3 months.
101 Charge 76 – 6 months.
102 Charge 77 – 9 months.
103 Charge 78 – 6 months.
104 Charge 79 – 8 months.
105 Charge 84 – you are fined $100.
106 Charge 85 – you are fined $100.
107 Charge 99 – 6 months.
108 Charge 101 – 8 months.
109 Charge 102 – 8 months.
110 Charge 103 – 8 months.
111 Charge 104 – 8 months.
112 I make the following orders for cumulation. I direct that six months from the sentences on Charges 4 and 8, four months from the sentence on Charge 2, three months from the sentence on Charge 12, two months from the sentences on Charges 3 and 5 and one month from the sentences on Charges 12 and 13 as well as one month from the sentences on summary charges 77, 79 and 102 be served cumulatively with each other and with the base sentence. This produces a total effective sentence of 5 years, 10 months and I order that you serve 3 years, 4 months before becoming eligible for parole. If not for your pleas of guilty I would have sentenced you to a total effective sentence of 7 1/2 years imprisonment with a non-parole period of 5 years.
113 I declare that you have already served 562 days of this sentence and I have sentenced you whilst being mindful of the fact that whilst in custody you have served five months in respect of another sentence which is not included in the pre-sentence detention calculation.
114 Is there anything arising from that, counsel?
115 COUNSEL: No, Your Honour.
116 HER HONOUR: Very well. Yes, thank you, sir. Could you please remove Mr Carminati?
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