Director of Public Prosecutions v Cutri

[2013] VCC 1058

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-00748

DIRECTOR OF PUBLIC PROSECUTIONS

v

COLLETTE CUTRI

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JUDGE:	HIS HONOUR CHIEF JUDGE ROZENES
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2013; 30 August 2013
DATE OF SENTENCE:	5 September 2013
CASE MAY BE CITED AS:	DPP v Cutri
MEDIUM NEUTRAL CITATION:	[2013] VCC 1058

REASONS FOR SENTENCE

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Catchwords:             Trafficking in a drug of dependence – methylamphetamine – multiple co-offenders – covert police operatives – telephone intercepts – undergoing sentence for unrelated dishonesty offences – concurrency – new non parole period fixed

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P. Pickering	Office of Public Prosecutions
For the Accused	Mr V. Peters	Chris McLennan & Co

HIS HONOUR:

1       Collette Michelle Cutri, you have pleaded guilty to one charge of trafficking in a drug of dependence from 28 June to 24 November 2011. 

2       You have admitted some 26 prior convictions from 12 court appearances between 21 July 1991 and 16 December 2010.  These convictions have been for driving offences, dishonesty offences, drug offences and public disorder offences, for which you have received sentences of imprisonment, which were either wholly suspended or to be served by way of intensive correction orders.  In addition to these matters, I was advised by Mr Peters, who appeared for you, that you served a five month term of imprisonment in 2012, which is not recorded on the Criminal Record filed by the prosecution. You are currently undergoing a sentence of twelve month’s imprisonment, with a non-parole period of 6 months, for credit card dishonesty, imposed on 28 May 2013 in the Melbourne Magistrates’ Court. 

3       The facts were opened in detail by Mr Pickering, who appeared to prosecute, and are contained in the summary of prosecution opening, Exhibit A. 

4       Briefly, in March 2011, police commenced Operation Retread, which was an investigation into drug manufacturing and trafficking by Ahmad Taleb and his associates.  The drugs involved included methylamphetamine, cocaine and cannabis.  During the operation, police monitored 42 calls between you and Ahmad Taleb.  The conversations were, as is often the case, in code.  The calls that are relevant to drug trafficking by you, are summarised in Appendix A to the prosecution opening.  Whist transactions involving amounts of $10,000 and above are discussed, it has not been possible to estimate the quantity trafficked by you.  What is clear is that you were selling or attempting to sell one and two ounce amounts.

5       When arrested in late February 2012, you told police that Taleb had asked you to sell drugs because your being a girl would be good for business, and that he would give you a percentage of anything you sold.  The selling price was between $10,000 and $11,000 per bag.  You told police that you wanted to make money for yourself, that you did not use speed or cocaine, and you made a statement to the police about your trafficking with Taleb.

6       On 24 July 2013, Ahmad Taleb pleaded guilty in this Court and was sentenced on the 16 August 2013 to trafficking in not less than a commercial quantity.  He was sentenced to five years and six months imprisonment, with a non-parole period of three years. 

7       By way of personal background you are now 39, the eldest of three siblings, and had learning difficulties as a child.  Your parents separated when you were twelve, and you have had limited contact with your mother.  You were placed in foster care and later at a boarding school.  You were raped at the age of thirteen and commenced using drugs and alcohol at this time.  You have had a number of medium-term relationships, had developed illicit drug habits and began associating with men who were habitual users and dealers.  In addition to the sentence you are currently undergoing, I am told that you are to appear at the Melbourne Magistrates’ Court on 20 September 2013 to face similar fraud charges. 

8       The report from Dr Aaron Cunningham, dated 9 July 2013, Exhibit 1, states that you have been diagnosed as suffering from borderline personality disorder and from severe depression.  There is some concern that you may have suffered brain damage as a result of an earlier assault or from inappropriate drug use. 

9       Mr Peters said that your life had been on a steady downward spiral since the disintegration of your family and it culminated in your becoming involved with Mr Ahmad Taleb and his associates.  He said that you obtained financial benefit and drugs to support your own habit.  Dr Cunningham said that your offending behaviour occurred in the context of your escalating elicit substance abuse and negative peer associations, and that you would require long-term psychological treatment to deal with your borderline personality disorder.  No attempt was made to causally link your offending to your mental health in the sense that it may reduce the moral culpability for your offending.  Nevertheless, I take into account, to use the words of Mr Peters, that since the disintegration of your family your life has been on a steady downward spiral.

10      Two character references, one from your sister, Chantelle, and the other from her partner, Exhibit 2, stated that they would be able to offer you full support and continuous monitoring if you were released into the community.  The letter from your sister also indicated you that have the support of your mother, including the option to live with her.  They are optimistic that you can be rehabilitated.

11      The basic purposes for which a court may impose a sentence are punishment, deterrence both specific in general, rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interest of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

12      The trafficking in drugs is pernicious.  Drugs affect the health and lives of many and are often found as the cause of other serious offending.  Trafficking in drugs in the quantities concerned in this case constitutes serious criminal conduct.  Whilst there was no evidence as to the total quantities trafficked, it is clear from the intercepted calls and what you said to police that the amounts were not insubstantial and over a significant period of time.  You were in it for the money as well as for your own use, and your conduct was sustained.

13      I was informed that you were facing further unrelated criminal charges to be heard in the Magistrates’ Court for offending similar to that for which you are currently serving a sentence.  I understand that you intend to plead guilty to some if not all of those charges.  Unfortunately those charges were indictable and accordingly could not be transferred to this court.  There remains therefore some uncertainty about any additional length of time that may be added to your present sentence.  Whist I will have regard to the totality principle in fixing your sentence for the present offending, I make it clear that I do not take any account of what may occur in the Magistrates’ Court in the near future.  I take into account your plea of guilty and whilst it was not offered at the earliest opportunity you are still entitled to its benefit.  I accept that you are remorseful.  You have vowed to keep away from your negative peer influences and hope for your sake that you are successful in this endeavour. 

14      I was asked to consider the imposition of a sentence of imprisonment combined with a Community Correction Order but have come to the view that the seriousness of your offending coupled with your antecedents do not permit such a disposition.

15 On the charge of trafficking in a drug of dependence you are convicted and sentenced to 18 months imprisonment. I order that the sentence be served concurrently with the sentence you are presently undergoing. Section 14 of the Sentencing Act 1991 requires me to fix a new single non-parole period. I direct that you serve 6 months before being eligible for parole.

16 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted.  Had you been convicted after a trial I would have sentenced you to two years and six months imprisonment with a non-parole period of 18 months. 

17 Finally, I make the order pursuant to s.464ZF of the Crimes Act 1958. I do so because of the seriousness of the circumstance of the offending and because the application is by consent.

18      I am obliged to tell you though that notwithstanding that you have consented to the procedure, if you resist the taking of the sample reasonable force may be used.  Do you understand that?

19      OFFENDER: Yes.

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