Director of Public Prosecutions v De Luca
[2022] VCC 703
•16 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-21-01010
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD DE LUCA |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 February 2022 | |
DATE OF SENTENCE: | 16 May 2022 | |
CASE MAY BE CITED AS: | DPP v De Luca | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 703 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Attempting to traffick a drug of dependence – Theft – Prohibited
person possess firearm – Trafficking in a drug of dependence – Knowingly deal with proceeds of crime
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic); Firearms Act 1996 (Vic)
Cases Cited:DPP(Cth) v Maxwell (2013) 228 A Crim R 218
Sentence: Convicted and sentenced to a total effective sentence of 6 years and 3 months’ imprisonment, with a non-parole period of 4 years and 3 months.
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 | Ms L. Ristivojevic | Sarah Tricarico Lawyers |
HER HONOUR:
1Richard De Luca, you have pleaded guilty to the indictable offences of trafficking and attempting to traffick a drug of dependence, theft, being a prohibited person in possession of a firearm and knowingly dealing with the proceeds of crime. You have also pleaded guilty to three summary offences.
2The charge of attempting to traffick a drug of dependence relates to your attempt to collect a consignment of 1, 4-Butanediol. Your offending was discovered in connection to a large investigation by the Echo Taskforce, under which telephone numbers of various suspects were subject to a lawful intercept. By this method, police became aware that Dominic Luzza was tracking a consignment on the Direct Freight Website.
3This consignment had been ordered from a business in Altona, and was addressed to Peter Davies at an address in Pascoe Vale. It was established that the address was of a closed business and that no person named Peter Davies was able to be linked to the consignment.
4On 12 August 2019 the police executed a search warrant at the Direct Freight warehouse, where the consignment was being held. They found that the consignment consisted of eight 25 litre plastic drums containing 1,4-Butanediol. The weight of the drug was 200.2 kilograms.
51, 4-Butanediol is a solvent which when consumed is metabolised by the body to become GHB. 1,4-Bd is a drug of dependence listed in the Drugs Poisons and Controlled Substances Act. At the time of this offence a commercial quantity was 2 kilograms, and the large commercial quantity was 20 kilograms. I mention this not because you are charged with an offence of trafficking either a commercial quantity or a large commercial quantity, but to put the size of the consignment in context.
6The police substituted the substance in the barrels with water, and then arranged a controlled delivery of the barrels.
7On 13 August 2019 Mathew Gray went to the delivery address. A police covert operative, acting as a delivery driver, called the number on the consignment and spoke with someone who identified himself as Peter Davies and who said he was at the delivery address.
8One minute after that call Mr Abdullayev contacted you, Mr De Luca, by phone. Seconds later you tried to call Mr Gray, and when that call was not answered you called again immediately. Gray answered and had a short conversation with you. The mobile phone towers put Mr Abdullayev and Mr Gray in the Pascoe Vale area and you in the area of Prahran.
9A short time later Mr Gray left the delivery address, approached the truck and asked if the driver was there to deliver to the address. He said he and the driver would have to carry the items inside.
10The prosecution case is that Mr Abdullayev answered the call from the delivery person, then called you and you called Mr Gray, so that he would meet the delivery driver.
11Mr Gray assisted the driver to unload the 8 boxes, and signed the collection form in the name of “John” purportedly on behalf of his boss, Peter.
12Police maintained surveillance on the delivery address.
13In the minutes after the boxes had been delivered, Mr Gray called you, Mr De Luca, and you called Abdullayev. Two minutes later Abdullayev pulled up at the delivery address in a van, and called Mr Gray, using the consignment phone number, to tell him he was there. A short time later he reversed the van in, and he and Mr Gray loaded the boxes into the van.
14As Mr Abdullayev drove away with the boxes, he called your number three times. Your phone was still registering at towers in Prahran and Richmond.
15At 3.05 pm, around an hour after the consignment had been delivered, Mr Abdullayev pulled up outside your home in Kew East. You were at that time using a black Volkswagen Golf. Around 10 minutes after Mr Abdullayev parked in front of your home you came outside and approached his van. You then went to the Golf, and put an item in it, before going back inside your home and coming out with a white box. You showed this to Abdullayev and then you put it in the Golf.
16I note that the Golf was a stolen car, and that Charge 2 on your indictment relates to your use of that stolen vehicle.
17You then got into the van with Abdullayev. A few minutes later you got out of the van and into the Golf. At 3.55 pm Mr Gray contacted you by phone. Following that you and Abdullayev drove in your respective vehicles to Abdullayev’s home in Reservoir. Abdullayev parked his van in the driveway, and you parked in the street.
18Once at Abdullayev’s home you both went to the side and rear doors of the van, before going into Abdullayev’s home. You then drove away, returning 5 minutes later. Abdullayev called your mobile phone. Around 10 minutes later you each unloaded a box from the van and took it inside the house. The prosecution case is that when inside you discovered that the liquid was not 1,4-Bd. You put the boxes back in the van.
19Both of you got into your respective vehicles and drove away before parking in another street in Reservoir. Once there Abdullayev got into your car.
20The police moved in to arrest you both. You, Mr De Luca, reversed at speed and in the process collided with a car driven by a Mr Edmonds, who suffered fractured ribs and a fracture to his right thumb, and causing so much damage to his car that it was written off. From this driving you are charged with driving in a manner dangerous, driving whilst unlicenced and driving whilst under the influence of a drug of dependence, namely methylamphetamine.
21After your arrest you were searched. You had in your possession a small bag containing a white crystal substance. Your Golf was also searched, with the police finding at that time:
(i)A loaded .22 calibre semi-automatic pistol, containing 10 rounds;
(ii)An OPPO mobile phone;
(iii)Two iPhones
(iv)$6,000 cash; and
(v)Loose white crystal substance.
22At this time, you were a prohibited person under the Firearms Act. The OPPO mobile phone had a sim card in it related to the consignment phone, which the prosecution say was being answered by Abdullayev, as I have set out earlier.
23Later that evening the police searched your home, finding digital scales, two bags containing a white crystal substance, and the box for the OPPO phone.
24The bags containing a white crystal substance were found to be methylamphetamine with the following weights:
(a) Bag in your possession 0.6 grams
(b) Bag in Golf 23.5 grams
(c) Loose powder in Golf – 2.0 grams.
25The Golf you had been driving was later subjected to a more thorough search. It was ascertained that the vehicle had been stolen around 9 days earlier, and that cloned plates had been put on it. Cloned plates are registration plates that match the colour and make of the car. When conducting this further search police located the original plates for the Golf, multiple cloned registration plates, your wallet with $655 cash in it, a Blackberry phone, a money counter and a vacuum sealer in a white box.
Gravity of Offending
Charge 1
26The Court of Appeal has said, in respect to assessing the gravity of this type of offending:[1]
[I]t should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, are relevant to determining the degree of moral culpability attached to the act of attempted possession itself. A sentencing judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise.
Offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs.
[1]Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673 at [36]; See also Nguyen v The Queen (2011) 31 VR 673, 681-682 [34](12).
27That statement applies with equal force to attempted trafficking of a drug of dependence. In assessing your culpability, I take into account that:
(a) You are not said to be the person who placed the order for the drug;
(b) You did all you could to take possession of the 1, 4 Bd. This charge is one of attempt only because the substance had been replaced by water;
(c) You took an active role in the collection of it, being part of the chain of contact between the delivery service and the receiver, Mr Gray; and
(d) Whilst Abdullayev was using the OPPO phone that day, the box it had come in was found your home, suggesting you provided the handset to Mr Abdullayev.
28In respect to Charge 1 your counsel adopted the submission that had been made on behalf of Mr Abdullayev, regarding the relevance of the nature of the drug, 1,4-Bd, in this sentencing exercise. It had been submitted that I should take into account the nature of the drug in Charge 1, in assessing the gravity of the offending, in view of the lower potential financial reward from the sale of the drug.[2] This submission was correct, generally speaking, but more important to the assessment of your and Mr Abdullayev’s offending is your limited role. I was given no information about what if any reward you were to receive for your participation. I do not sentence you on the basis that you were going to receive any of the sales profits.
[2]DPP(Cth) v Maxwell (2013) 228 A Crim R 218, [21]
29In respect to Charge 2, theft of the Volkswagen Golf, it is not alleged you were the original thief. You took steps to disassociate this car from its actual ownership by having cloned plates on it.
30Charge 3 is a serious offence, carrying a maximum penalty of 10 years’ imprisonment. This gun was in your vehicle, and loaded. I was told it was in a bag found on the front seat of the car. You had it with you in the context of transporting the drug which is the substance of Charge 1. Whilst there is no evidence you intended to use the weapon, the circumstances of your possession of it place this offence in a more serious category than, for example, someone who had a gun stored in a cupboard in their house, unloaded.
31Charge 4 relates to nearly an ounce of methylamphetamine in your possession. A trafficable quantity of that drug was 3 grams.
32The summary offence of dangerous driving was committed by you in trying to avoid the police. Your driving was clearly dangerous and has led to the driver of the vehicle you collided with suffering significant, although not serious in terms of the Crimes Act, injuries. You were driving whilst unlicenced and with methylamphetamine in your blood.
Personal Circumstances
33At the time of the offending, you were 31 years old, and you are now 33, soon to be 34.
34You grew up in Kew. Your father was an accountant, and your mother a bookkeeper. You have a younger brother and sister. Your family was relatively well off, you went to school, played sport and your family did things together.
35Whilst your father drank too much when you were a teen, particularly after he and your mother separated, he was not physically violent to your or anyone in your family, and there were no other forms of abuse to which you were subjected.
36When you were in your mid-teens your parents separated, your father leaving to be with another woman. This made you upset with your father and you did not speak to him from the time you were 15 until you were 19.
37When you first began to get into trouble with the law your relationship with your father was repaired, and you report that you now have a good relationship with him.
38You say that after you developed a group of friends school was not a problem, and you were a school captain. You were an average student, until you started using drugs when you were in Year 9, and you lost interest in making an effort at school. Whilst you did complete year 12, you had a low score on your results.
39You attribute the troubles at home to you starting to use illegal drugs. You started trying amphetamine, Cannabis and MDMA when you were around 15, by 17 you were using methylamphetamine daily and by 18-19 you were also abusing GHB. You would relapse into drug use quickly when not in custody, and found yourself back in custody again fairly quickly.
40Your relationship with your siblings was damaged by your drug use and offending, but more recently you have been reconnecting with your brother and sister.
41In your teens you were working in clubs as a DJ and selling drugs.[3] You had some work in retail, and were planning to start a Bachelor of Business at La Trobe University, but by the age of 19 you were in custody.
[3]Report of Ms Pamela Matthews, dated 24 January 2022, page 3 (Report of Ms Matthews)
42You told Ms Matthews, who assessed you for this plea hearing, that each time you were in custody and then released you relapsed sooner or later into drug use. You had done various courses addressing drug and other rehabilitation whilst in custody, but with no actual benefit for you. You were subject to the Drug Treatment Order at the time you committed the offences for which I am sentencing you.[4] The urine screens provided under that Order were positive for methylamphetamine throughout June to your arrest in August 2019, and also showed the use of other drugs and prescription medication such as buprenorphine, and on one occasion cocaine.
[4]Report of Ms Matthews page 3; Application to Cancel Drug Treatment Order Report, dated 3 May 2021
43After you were released on bail on these charges you were admitted into the Bridge program until 11 August 2020. It is reported that you engaged well with that program. Because of that an application to cancel the DTO was refused. For the rest of 2020 you continued to engage with the DTO, but in March 2021 your participation reduced and in April 2021 you were again remanded in custody for new offending. You reported that you had lapsed back into the use of methylamphetamine.
44Whilst on bail you had moved out of the family home into accommodation with your girlfriend, whom you had met at rehab. You say that in February 2021 she started using again, causing problems with your accommodation and eventually you relapsed.
45After you were remanded in custody again in April 2021 you had counselling from a drug counsellor, Ms Doyle, in December 2021 and January 2022.[5] Ms Doyle reported that you engaged well with her, and that you appear to be motivated to make significant changes in your life. She noted the protective factors in your life, and your determination to progress your rehabilitation, once released from custody.
[5]Report of Ms Karly Doyle, dated 2 February 2022
46A report was provided from Ms Matthews. She considered you present with features of Borderline Personality Disorder, and noted that the symptoms associated with that disorder tend to reduce as a person matures. She considered you met the criteria for a drug abuse disorder, and that you will need long term support and commitment to change, to become drug free.
Criminal Record
47You have relevant and significant prior convictions. On 4 June 2019, approximately 6 weeks before this offending you were sentenced to a 2 year Drug Treatment Order, for the offence of being a Prohibited Person in Possession of a Firearm, trafficking heroin, possessing methylamphetamine, dealing with property suspected of being the proceeds of crime, resisting an emergency worker on duty, and unlicenced driving.
48You have convictions from 2017 for offences including possession of methylamphetamine and other drugs, reckless conduct endangering serious injury, dangerous driving, using false registration plates, failing a drug blood test within 3 hours of driving, and unlicenced driving for which you also received a prison sentence.
49In 2010 you were sentenced for trafficking a drug of dependence in a commercial quantity and related offending, to a total of 5 and a half years, with a non-parole period of 3 years. In 2008 when you were but 20 you were sentenced for possession and trafficking and received a partially suspended jail term.
50It was calculated that in the eleven years of June 2008 and June 2019, you spent 9 years and 3 weeks in custody.
References
51A letter from your father was tendered on the plea. He has described how positive you were, initially, about being admitted to the Drug Treatment Order and the rehabilitation under that order. He says that you were spending time with your family, and were on the path to becoming your old self, and a regular member of the family again. You were positive about the future.
52You have written a letter to the Court. You make the link between your drug use and offending, and accept that you are an addict. You say that although you did courses about drugs in prison, they did not help you deal with your addiction. You say in the letter that you participated in offending so as to get free drugs and that your focus at those times was not on the consequences of your offending but simply on getting some drugs. You say that the Bridge program was of real benefit to you and that you now have the tools to fight your addiction. You are rightly proud of the time you spent clean. You asked for a combination sentence as you think that would be of more benefit to you in getting back on track with rehab, unlike a parole period.
53You apologised to the driver of the car which you collided with.
Prospects of Rehabilitation
54Your ability to stay out of trouble with the law is clearly linked to you remaining free from drugs. It is a very positive thing that you know the cause of your offending, and that you are keen to take part in further residential and other rehabilitation. You have plans for the future which are achievable.
55The difficulty is staying clear of drugs. I accept that the road to recovery almost always involves relapse. You have come to some fundamental realisations about your addiction, but there remains a risk of your relapsing again, and committing offences again.
56Ms Matthews assessed your risk of reoffending as on the same level as others in custody with you.[6]
[6]Report of Ms Matthews, page 4
57The prosecution submission was that your prospects were guarded, and pointed to your serious criminal history.
58I consider that your prospects are guarded at best. Your history in recent years is positive, in that you are now interested in addressing your addiction, but it also demonstrates that this is a process not an achieved goal, and that it will be difficult for you to stay clean and out of trouble.
59A late submission was made that I should take into account the time you spent in residential rehabilitation, pursuant to the principles set out by the Court of Appeal in Akoka.[7] The letter from the Bridge program sets out that whilst subject to the program you were required to stay on the premises at all times, to work with staff, and were subject to random drug screens. It is unclear to me whether you have already been given the benefit of that program in sentence in the Magistrates Court. In view of the work you did on that program, whilst on bail, I will afford you a degree of mitigation of your sentence on this basis.
[7]Akoka v The Queen [2017] VSCA 214
Matters Raised on Plea
Plea of guilty
60The charges to which you have pleaded guilty were resolved at the committal hearing. I will treat this as an early plea, in view of the complexity of resolving not only your charges but also the charges against the others who were charged in connection to this investigation. Your plea of guilty gives rise to significant mitigation of your sentence, by reason of the utilitarian value of the plea in the context of the pandemic and its effects on the operations of the courts. You also entered a plea during the pandemic, and whilst being aware that you faced further imprisonment under the more onerous conditions caused by the pandemic.
61I also take into account that your time on remand, during the pandemic, was made much more difficult, due to lockdowns, limitations on activities, less time out of cell and limited ability to have contact with visitors.
62You have expressed some remorse for your offending, particularly the driving offences.
Parity
63Your offending was committed with Ruslan Abdullayev. Although it is possible to point to slight differences between your offending on this day, there is little to distinguish the criminality of each of you. Mr Abdullayev does have a relevant prior conviction for drugs – in January 2015 he was sentenced in this court to a total of 16 months for offences including possession of a chemicals used in the manufacture of drugs, possession of drugs and dishonesty offences.
64The principal point of difference between you and Mr Abdullayev is your prospects for rehabilitation, and the need for specific deterrence. I consider that he has markedly better prospects than you, and whilst specific deterrence was a factor of some weight in his sentence, it carries more weight in yours. I sentenced Mr Abdullayev to 3 years imprisonment for the offending covered by Charge 1.
Delay
65The passage of time between being charged and now sentence gave you the opportunity to work on your rehabilitation and you made progress in this area, despite the setbacks.
Disposition
66Consistent with the hope expressed by you in your letter to the Court, your counsel submitted that a combination sentence would assist your rehabilitation, as well as meeting the sentencing purpose of just punishment. She submitted that for a person such as you, who is institutionalised, there is no rehabilitative or punitive aspect to further imprisonment. The prosecution position was that a jail term with a non-parole period is called for.
67The difficulty with your counsel’s submission is that there are more factors to be taken into account than your personal circumstances and rehabilitation, and punishment. General deterrence is a powerful factor in drug offending, and for the possession of firearms whilst a prohibited person. This is the case even in view of your limited role in respect to Charge 1. As I said in sentencing Mr Abdullayev people must be deterred from taking any role in drug trafficking, whether as a receiver of the profits, or for lesser roles in the trade. Whilst I will give somewhat less weight to general deterrence in view of the nature of the drug,[8] this factor still carries real importance in sentencing you. Furthermore, your offending whilst on one day encompasses a number of different types of criminality.
[8]DPP(Cth) v Maxwell (2013) 228 A Crim R 218
68Whilst I had you assessed for a CCO, having given further and detailed consideration to the offending and your history I have concluded that such a sentence would be wholly inadequate.
69I will now set out what the sentences are. On Charge 1, attempted trafficking, the sentence is three years and six months. Charge 2, theft, the sentence is one year. Charge 3, prohibited person in possession of a firearm, the sentence is two years and six months. Charge 4, trafficking methylamphetamine, the sentence is nine months. Charge 5, knowingly dealing with the proceeds of crime, the sentence is 18 months.[9]
[9]When delivering the sentence orally I incorrectly declared the sentence on this charge to be 1 year and 18 months. This was a slip which was corrected in the Orders.
70On the summary charges, Summary Charge 7, dangerous driving, the sentence is 12 months. Summary Charge 11, unlicensed driving, the sentence is three months. And on Summary Charge 12, the sentence is a $750 fine.
71The sentence on Charge 1 is the base. I order that six months of the sentence on Charge 2, 12 months of the sentence on Charge 3, two months of the sentence on Charge 4, six months of the sentence on Charge 5, six months of the sentence on Summary Charge 7 and one month of the sentence on Summary Charge 11 is served cumulatively upon each other and on the sentence on Charge 1. By my calculations, that results in a sentence of six years and three months' imprisonment. I set a non-parole period of four years and three months.
72I declare, pursuant to s18 of the Sentencing Act, that you have already served 603 days by way of pre-sentence detention, and I direct that this declaration be entered into the records of the court.
73Pursuant to s6AAA, I state that if you had not pleaded guilty, I would have sentenced you to eight years' imprisonment, with a non-parole period of six years.
74On Summary Charge 7, your licence is cancelled, and you are disqualified for six months. On Summary Charge 12, your licence, if you have one, is cancelled and you are disqualified from obtaining a licence for 12 months from today.
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