Director of Public Prosecutions v Cintolo
[2020] VCC 1521
•23 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-20-00735
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE JOHN CINTOLO |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 September 2020 | |
DATE OF SENTENCE: | 23 September 2020 | |
CASE MAY BE CITED AS: | DPP v CINTOLO | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1521 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentencing – Plea of guilty - Trafficking a drug of dependence – Commercial quantity – Possession of drug of dependence.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Maguire | Office of Public Prosecutions |
| For the Accused | Mr M. Radzaj | Adrian Dessi Legal |
HIS HONOUR:
1 Luke John Cintolo, you have pleaded guilty to one charge of trafficking a commercial quantity of a drug of dependence, one charge of possession of a drug of dependence and two uplifted summary charges of possessing a prohibited weapon and one charge of driving whilst disqualified.
2 The maximum penalty for trafficking a commercial quantity of a drug of dependence is 25 years imprisonment. As to the charge of possession, it was agreed between the parties that you possessed a drug of dependence, namely 3,4-Methylenedioxy-N-Methylamphetamine (MDMA), for a purpose not related to trafficking. I am satisfied on the balance of probabilities that this is the case. Accordingly, a maximum of 12 months imprisonment, or a fine of 400 penalty units, or both, applies in that case.
3 The maximum penalty in respect of both summary offences for possessing a prohibited weapon and driving whist disqualified is 240 penalty units or two years imprisonment for each offence.
Circumstances of Offending
4 The circumstances of your offending were outlined in the 'Summary of Prosecution Opening' dated 12 August 2020, which was Exhibit A on your plea and forms part of these reasons.
5 On 2 January 2020 at approximately 1:55pm, you were stopped by Victoria Police members after you were observed driving a black 2012 make 'Great Wall' utility truck in the Highett area.
6
At the time, you were disqualified from holding a Victorian driver's licence as your licence had been cancelled in the Dandenong Magistrates' Court on
26 November 2019 and you could only be relicensed upon order of a Magistrate (Charge 6, Related summary offence – driving whilst disqualified).
7 Once police had intercepted your vehicle in Highett, they asked you to step out of the truck and enquired if you had anything nefarious in the vehicle. You appeared nervous, replying 'not to my knowledge' and advising that the car belonged to a friend.
8 Police, having knowledge of the drug activity in the area, decided to search the vehicle, which resulted in the following items being seized and photographed:
a. A white bottle with bubble wrap around it containing a clear liquid;
b. Two capsules containing a white substance; and
c. A black Apple iPhone.
9 At the conclusion of the search you were arrested and advised that a warrant would be issued to search your current residence. This search warrant was obtained and subsequently executed by police on the same day at approximately 3:15pm.
10 The search by police at your residence was fruitful, in an investigative sense. The following items were identified, seized and photographed:
a. An extendable baton found on the floor near a wardrobe (Charge 5, Related summary offence – possess a prohibited weapon);
b. Two five litre 'Refresh' branded bottles containing a clear liquid found in a suitcase on the floor in front of your bed; and
c. Measuring devices and 35 millilitre cups.
11 After your arrest you were transported to Moorabbin police station, and at 5:50pm you took part in a recorded interview, where you told police you were using 1,4-Butanediol, but trying to wean yourself off, in your words, 'bit by bit'.
12 Concerning the pills located in the car, you told police you took them for an uplift in energy and they came in glass bottles you could buy at a pharmacy.
13 In response to questions about the bottles found in a suitcase at the end of your bed, you told police that there are people who have keys to your apartment and that you have not been back to the premises in three or four days.
14 You emphatically denied that you were a trafficker of drugs when asked about the amount of illicit substances found at your residence.
15 Lastly, regarding the summary charges of possessing a prohibited weapon and driving whilst disqualified, you said that you had the baton for protection after you and your current partner were victims of an aggravated burglary. You said you thought your licence had been restored in the past month.
Forensic Examination
16
On 10 February 2020, the police provided the pills and vessels containing clear liquid to the Victoria Police Forensic Services Centre (VPFSC). On
22 May 2020, the VPFSC's analysis showed that;
a. The liquid in the bottle with the bubble wrap found in the truck contained 268 grams or thereabouts of 1,4-Butanediol;
b. The two capsules located in the car weighing 0.3 grams and contained 17 per cent MDMA (Charge 2 – Possession a Drug of Dependence);
c. The liquid contained in the two five litre 'Refresh' bottles found in a suitcase at the foot of your bed contained 4,615 and 4,613 grams of 1-4-Butanediol, respectively.
17 In total you were found with 9,797 grams, or just under 9.8 kilograms of 1,4-Butanediol (Charge 1 – Traffic a drug of dependence in a commercial quantity). The minimum threshold for a commercial quantity of 1,4-Butanediol is two kilograms. You trafficked nearly five times this amount.
Personal Circumstances
18 Your personal circumstances were outlined in your Counsel's 'Submissions on Behalf of Accused', dated 31 August 2020. This was Exhibit 1 on your plea and also forms part of these reasons.
19 To summarise, you were born in Shepparton and your childhood was unremarkable from a sentencing perspective, although I note your parents' separation and the absence of a father figure from a young age.
20 You were raised by your parents in a religious household with your sister, who is nine years your senior. Your mother was a Sunday school teacher and I am told you maintain your strong religious beliefs.
21 At the age of nine your parents separated. You left Shepparton with your mother to live in Mulgrave while your sister and father remained in Shepparton. You have had minimal contact with your father since.
22 You were educated until Year 11, leaving high school after accepting an apprenticeship as a painter. You were so employed for 12 years before starting your own business, which was operational for several years, while you obtained additional qualifications in design and decoration. You also developed a company named 'Coloursmart', which at its peak was employing 15 people.
23 Your strong work history is very much to your credit and offers more than a glimmer of hope regarding your prospects of rehabilitation.
24 You have had three significant romantic relationships which give context to your offending. The first relationship was with Melissa and commenced when you were 24 years old. You married Melissa in 2008 after four years together and moved to Sydney for a short period before returning to Melbourne and purchasing a home in Cheltenham.
25 I am told by your counsel that you were happy and financially secure with Melissa, despite trying to conceive a child unsuccessfully for five years. This period of contentment concluded in 2013 after you discovered that Melissa was having an extra-material affair with a mutual friend.
26 In an effort to maintain the marriage, you both sought counselling; however, reconciliation could not be achieved, and the marriage broke down in 2015.
27 As was emphasised at your plea, it is at this juncture where your outlook on life became bleak, spurred on by your divorce and the subsequent proceedings which persisted for some months.
28 Mr Cummins, in his psychological report dated 19 August 2020, opines that you most likely developed Major Depressive Disorder at this time and began to self-medicate with methamphetamine.
29 While your divorce was being finalised, you began dating Rose. Rose had two children from a previous relationship and you frequently spent time with them.
30 Your counsel informs me that you achieved abstinence at this time; however, your relationship with Rose took its own toll. In retrospect, you describe the relationship as toxic, as it was plagued by frequent arguments, and your depressive symptoms worsened as a result. I heard more about this relationship during the evidence of your mother on your plea.
31 The pressures of life, such as your responsibilities at work, only exacerbated your depressive systems and aggravated the unaddressed emotional trauma of your previous marriage with Melissa and acrimonious relationship with Rose.
32 In 2018 you separated from Rose and you recommenced using methylamphetamine. You also started using 1,4-Butanediol for the first time.
33 Over the next two years your addiction continued. At its worst, you were taking methamphetamine and butanediol daily.
34 During this tumultuous time in your life, you commenced your third relationship with Melinda in 2019, a childhood friend, who is an early childhood educator.
35 You hid your drug use from Melinda and tried to return to abstinence but were unsuccessful. Your commitment to sobriety waivered further after you and Melinda were victims of the aggravated burglary I have referred to, in late 2019.
36 I am told that after the burglary you reverted to your previous levels of heavy use up until your arrest in January 2020.
37 Melinda continues to be a supportive and protective factor for you into your future, and I note her presence at this hearing today and previous.
Objective Gravity of Offending
38 Commercial trafficking of illicit substances is a scourge upon our community. It is a serious offence, carrying a maximum of 25 years imprisonment.
39 You trafficked approximately 4.9 times the commercial quantity, which is a matter of significance in my assessment of the objective gravity of your offending.
40 It is also relevant to my assessment of the objective gravity of your offending to consider the value of the drugs trafficked, the context and your motive.
41 Both Defence and Prosecution pointed out that there is no evidence of enrichment from your offending and the undisputed fact, of which I was unaware prior to your plea, that 1,4-Butanediol is a substance that does not attract a large commercial benefit relative to other illicit substances.
42 I am satisfied the context of your trafficking was that of a user/trafficker whose motive was founded in addiction to the substance rather than profit.
Antecedents/ prospects of rehabilitation
43 Your antecedents are relevant to my consideration of sentence in relation to my assessment of your prospects and to the degree of leniency that should be extended to you.
44 This is will be your first extended period in custody, you have relevant criminal antecedents for drug possession and trafficking.
45 You committed the offences before me whilst completing a community correction order for not dissimilar offending.
46 Given your antecedents, the prosecution contend that I should be guarded about your prospects of rehabilitation.
47 There is cause for pessimism regarding your addiction issues. Clearly, you are an individual who needs much assistance in rehabilitation from addiction.
48 Your criminal record and personal circumstances illustrate a pattern of offending that has arisen since your life fell in somewhat of a hole some years ago due to some adversity, to which I have referred, triggering depressive symptoms which led you to succumbing to substance abuse.
49 Your vulnerability to illicit substance use and associated offending in times of stress gives rise to a guarded view as to your prospects.
50 There are also causes for some optimism in your case, however.
51 Submissions provided by your counsel indicate you are interacting with psychiatric nurses and using your spare time for woodworking while in custody. You have also maintained sobriety.
52 Mr Cummins found your prospects for long term rehabilitation 'reasonably favourable and most probably very favourable', with 'a very good level of insight' into what promoted your offending.
53 This view is corroborated, to some extent, by your mother Merrilyn her thoughtful and persuasive evidence during the plea hearing.
54 There is evidence of some remorse from both of these sources.
55 I consider it significant that you have such an impressive work history. The late onset of your addiction issues and offending is also significant from a sentencing perspective. It is very much to your credit that for many years you ran a business and employed people in the community. You have demonstrated success and an ability in a trade to which you can return.
56 Based largely on your work history and the support of your mother and Ms Pearce, I find your prospects to be reasonable.
Plea of Guilty
57 You have pleaded guilty at an early stage of proceedings. I find your plea of guilty to be reflective of remorse. Further, it has a significant utilitarian value, particularly at this time, when criminal trial lists are in a state of crisis, due to the pandemic.
COVID-19 Pandemic and Isolation
58 I have taken into account that this is your first prison sentence of length, as I have the extraordinary circumstances of your experiencing that prison sentence in the context of the COVID-19 pandemic.
59 Whilst there is no evidence of an outbreak in any prison at present, and I certainly do not assume that there inevitably will be an outbreak, I accept that conditions in custody at present are considerably more onerous than previous, if for no other reason than due to the ceasing of visits. There is also limited courses and rehabilitation programs available and recreation is also necessarily limited. It is expected that that situation will continue for some time.
60 I accept also that the general anxiety in the community of an untethered outbreak is understandably harder to bear if it is experienced by a prisoner in a regulated and managed environment such as a prison, where one has restricted control over who one is exposed to and how. I also accept that the level of concern you may have and anxiety you may have for others during this time is more difficult to bear whilst incarcerated. I have taken that matter into account. I also have taken into account - and it should be apparent, flowing from my comments about the objective gravity, that I have taken into account the importance of general deterrence in sentencing a matter such as this, as well as denunciation and just punishment.
Sentence
61 On Charge 1, trafficking a commercial quantity of a drug of dependence, you are sentenced to be imprisoned for three years and six months.
62 On Charge 2, possessing a drug of dependence, you are sentenced to one month imprisonment.
63 On the first uplifted summary charge (Charge 5) of possessing a prohibited weapon, you are sentenced to be fined $250.
64 One the uplifted summary charge (Charge 6) of driving whilst disqualified, you are sentenced to one month imprisonment.
65 That makes a total effective sentence of three and a half years imprisonment. I set a non-parole period of two years.
66 Pursuant to s.18 of the Sentencing Act 1991 (Vic), I declare that you have served 265 days of pre-sentence detention, excluding today, and I direct that this be administratively deducted from the sentence that I have imposed today.
67 Pursuant to s.6AAA of the Sentencing Act, but for your pleas of guilty, I would have sentenced you to a total effective sentence of four and a half years imprisonment, with a non-parole period of three years.
68 I make the forfeiture order that is sought in relation to the Apple iPhone used in the offending and the disposal order of the items as contained in the schedule of that order.
69 I will sign those now. And they are my reasons. Now, is there anything I have overlooked, Mr Radzaj?
70 MR RADZAJ: There is only one minor matter. At the initial stages of Your Honour's sentence, I believe it was may be at the point where Your Honour referenced comments made by Mr Cintolo in his record of interview, I believe I heard Your Honour say that he said he was weaning himself off MDMA - the reference in the record of interview was to 1,4-Bunanedial, not MDMA.
71 HIS HONOUR: Thank you. Well, look, I accept that, and I will - it is important to correct the record in that respect and in my published reasons, that will be corrected. All right, anything else?
72 MR RADZAJ: No, there is nothing further, Your Honour.
73 HIS HONOUR: All right, thank you. Yes, we will adjourn the court.
74 MR RADZAJ: As the court pleases.
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