Director of Public Prosecutions v Cassar

[2014] VCC 646

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-02076

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEORGE CASSAR

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2014
DATE OF SENTENCE:	9 May 2014
CASE MAY BE CITED AS:	DPP v Cassar
MEDIUM NEUTRAL CITATION:	[2014] VCC 646

REASONS FOR SENTENCE
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Subject:Criminal Law- sentence  

Catchwords:   Pleas of guilty to traffick drugs x 2, prohibited person possess firearm x 4, dealing with proceeds of crime x 1 – 57 year old long-term drug addict, heavy drinker, dysfunctional lifestyle owing to substance abuse – bailed to CISP –good progress, drug-free, insight & motivation, close supportive family.       

Sentence: 3 years 3 months, non-parole period of 20 months.             

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Rooney	OPP
For the Accused	Mr D. Farrington	Patrick Dwyer & Associates

HER HONOUR: 

1George Cassar, you have pleaded guilty to two charges of trafficking in a drug of dependence and four charges of being a prohibited person in possession of a firearm, as well as a summary charge of dealing with the proceeds of crime.  The possession of firearm charges relate to a .22 semi-automatic rifle, two pen pistols and a 12-gauge sawn-off shotgun.  The trafficking charges related to methylamphetamine and cannabis.

2Police executed a search warrant on 13 December 2012 at your home, where you were residing with several other men.  Your partner, Jennifer Flannery, had moved out previously because you were leading a dysfunctional life, focusing on illicit drugs and excessive use of alcohol and she had had enough.  Indeed, photographs show a house and garden with an outdoor shed totally abandoned to such a dysfunctional lifestyle, crowded with clutter and the accoutrements of the renovations you and the other occupants believed you were working on.  You and the other occupants were also using drugs and alcohol heavily.

3During the search, the police located drugs, firearms and cash.  28.9 grams of methylamphetamine was found in 81 plastic bags, ready for sale.  This was the subject of Charge 1.  They found a total of 590.85 grams of cannabis, in 27 plastic bags, and some loose cannabis in other containers.  Other supplies of plastic bags were found, as well as two sets of scales for weighing drugs.  This was the subject of Charge 2. 

4The next four charges relate to the firearms found at the premises and on your person.  The .22 rifle was found lying on the path in the neighbour's backyard, apparently thrown there when the police arrived.  It was later tested and found to be in working order.  DNA found on it was a strong match with your DNA.  Two pen pistols were found in your pockets, both found to be operating correctly.  The sawn-off shotgun was found in the laundry and was in working order. 

5A total sum of $1,130 in cash was found in your pockets and, in the house, $5,800 was found in a paper bag bearing your name.  A further $3,320 was found on the kitchen bench.  A total of $380 divided into smaller amounts was found in the shed, and so the total amount of cash located was $10,630.  This is the summary charge of dealing in the proceeds of crime. 

6You were arrested and remained in custody until released on bail on 17 January 2013.  A condition of your bail was that you comply with the conditions of CISP, a court-managed bail program.  I shall return to that matter later in these sentencing remarks.  A contested committal hearing took place in October 2013 and, after extended negotiations, you pleaded guilty to these charges.  That plea means that you are entitled to the full benefit of a discount on your sentence for having avoided a trial and the expense and inconvenience that that would have involved.  You spent 35 days in custody at that time.  Since being remanded after the plea hearing last week, you have spent a further nine days in custody  not including today, so that is a total of 44 days.  Those days will be reckoned as already served and I shall cause that to be noted on the court record.

7You are a 57-year-old man who has lived in a long-term de facto relationship for over 30 years with your partner.  There are three adult children from that relationship.  You and your partner have reconciled since the separation, which occurred just before your arrest; however, she has made it clear that the reconciliation is conditional upon your abstinence from drugs and excessive alcohol and the exclusion from the house of your drug-using friends. 

8After leaving school, you completed a carpentry apprenticeship and worked in that industry for several years, then as a panel beater and later you operated your own landscaping business.  In recent times you have worked occasionally.  You are clearly capable of hard work and, indeed, you have proved to be something of an innovator.  You have a history of both marijuana and ice addiction.  At the time of the offending you had daily ice usage, but since being remanded and then released on the conditions of CISP you have been able to abstain.

9I have read three reports which describe your progress through the program as having been good.  The final of these reports states that you remain engaged and appear to have embraced necessary lifestyle changes.  From that program, you progressed to treatment with a drug service, which you had attended in the past and had found helpful, and you continued to remain drug free. 

10Your family life had not been easy because your youngest child, aged 23, was troubled by ADHD as a child and has since been diagnosed with schizophrenia.  He has been hospitalised several times for this and for drug‑induced psychosis.  He is presently in trouble with the law and requires close attention from his mother, a burden which falls entirely upon her when you are in custody.  Your older two children have never been in trouble and are living productive lives.

11These charges are serious in various ways, and that is reflected in the maximum penalties: 15 years' imprisonment for the trafficking charges and ten years for the firearm charges; for the summary offence, the maximum penalty is two years' imprisonment.  The firearm charges are very concerning and you have sought to explain their presence in the context of your familiarity with firearms from your rural background, and lack of proper consideration having been given to their presence because of your drug-addled state.  Whatever the situation, it was a flagrant breach of the law in each case, particularly in relation to one of the pen pistols, which was loaded, ready for use.

12General deterrence is an important purpose of sentencing, which must be reflected in the sentence I impose.  So too is specific deterrence important.  My first comment about that is that your discussions with the psychologist, Mr Cummins, reveal that you have gained some insight into the state you were in at the time of your arrest.  That is that things were out of control.  Your partner's reaction, your time in custody and the chance to reflect on your actions seem to have brought that insight about, as well as perhaps regularly taking medication for depression rather than using drugs and alcohol.

13In short, your situation has improved considerably and you are now much better placed to cease offending and to abstain permanently from the illicit substances that get you into trouble.  Your criminal history, while not extensive, is consistent with the lifestyle you had adopted and there is some relevant prior offending.  Mr Cummins noted your long-term serious depression, which he thinks will not be assisted by lengthy incarceration but rather would impede your rehabilitation, which he regards as significantly established.  I take a slightly more guarded view but acknowledge the progress you have made as a good foundation for ongoing consolidation of the steps you have already taken.  Would you stand now, please, Mr Cassar.

14I sentence you as follows.  For each of Charges 1 to 6 inclusive, two years' imprisonment; for the summary charge, six months' imprisonment.  The sentence for Charge 1 is the base sentence for purposes of cumulation.  I order that three months of the sentences for each of the other charges except the summary charge be served in cumulation upon the base sentence.  That is a total effective sentence of three years and three months.  I fix a minimum period of 20 months, which you must serve before being eligible for parole.  I have applied some leniency because of the progress you have made and in the expectation that you will remain well motivated to continue making progress when released.

15If you had pleaded not guilty I would have sentenced you to a term of imprisonment of four years with a non-parole period of two years and six months.  The prosecution seeks orders for forfeiture and disposal of various items to which you have no objection, through your counsel.  I make those orders. 

16Mr Rooney, is there anything I've neglected?

17MR ROONEY:  Just to formally declare that pre-sentence detention, which you - - -

18HER HONOUR:  I did that in the running. I think I have said that that  is  declared as already served; if I did not say it, I will say it now.

19MR ROONEY:  You did say it.

20HER HONOUR:  All right, thanks.  Anything else, Mr Farrington?

21MR FARRINGTON:  No, Your Honour. I wonder if I might seek Your Honour's indulgence and ask if I can briefly see Mr Cassar in the court.

22HER HONOUR:  Yes.

23MR FARRINGTON:  Due to the change in the schedule today, I have child commitments which require me to run off and I just would like to speak with Mr Cassar briefly.

24HER HONOUR:  I see.  I'm sorry about that inconvenience.

25MR FARRINGTON:  I would have structured my day differently had I known that Your Honour was going to be delivering sentence at 3 oclock.

26HER HONOUR:  Very well.  I'll leave the Bench and you may speak to him.  If Ms Flannery wants to have a word with him, she may too.

27MR FARRINGTON:  That's much appreciated, Your Honour.

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