Director of Public Prosecutions v De Luca

[2014] VCC 518

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-00569

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICHARD DE LUCA

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 April 2014
CASE MAY BE CITED AS:	DPP v De Luca
MEDIUM NEUTRAL CITATION:	[2014] VCC 518

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J.D. Ellwood
For the Accused	Mr J. McQuillan

HER HONOUR: 

1Richard De Luca, you have pleaded guilty before me to three charges of handling stolen goods and one charge of possessing a drug of dependence. 

2The prosecution opening in this matter is annexed to my sentencing remarks.

3Essentially, in very short compass, on 20 July 2012, police attended premises at 10/45 Pakington Street, Kew, where you were present with two other persons.  You were found to be in possession of a pouch containing cards in the name of Scott Sage, which items were stolen from Mr Sage's vehicle on an earlier occasion.  Your possession of those items underlie Charge 1 on the indictment. 

4In relation to Charge 2, you were also found to be in possession of a stolen computer, adaptor and mouse. 

5Charge 3 relates to your possession of documentation and a number of items of jewellery and other valuable items which had been stolen in a burglary also some time previously.

6Finally, police found you had a gram of methylamphetamine with a purity of about 70 per cent in your possession, specifically located in the dining room in the main room of the apartment.

7In an interview with police, on legal advice, you made "no comment" to questions put to you.  I accept, however, that from the earliest stages negotiations took place between your legal advisers and the prosecution as to the possibility of entering a plea of guilty to an appropriately framed indictment.  The sticking point related to charges of trafficking and possession of precursor drugs required for the manufacture of methylamphetamine, which charges were ultimately withdrawn by the prosecution and it is conceded in the circumstances you have therefore entered a plea at the earliest opportunity.

8I turn now to your personal circumstances.  You are 25 years of age, were born into a good home where your father is an accountant, your mother a real estate agent, both parents being present in court during the plea.  You are the eldest of three children, the only one to have found themselves in criminal trouble.  You have a 22 year old brother who works in telemarketing and a 15 year old sister who is still at school.  You were educated at St Anne's Primary School in East Kew and then at Marcellin College where you completed Year 12.

9For eight months following school, you worked for a firm, Energy Electricity, in sales, but your downfall, and it is a remarkable downfall which I will shortly outline, came because of the fact that you engaged in DJ-ing in clubs, particularly in the Chapel Street area. 

10You have a reasonably lengthy drug history, in that you began smoking cannabis at the age of 14, reaching a habit of about three and a half grams a day, which is a considerable amount.  You also began using ecstasy at that time, consuming up to ten to 15 tabs of ecstasy on a weekend basis.  You began using amphetamines on a weekend basis at the age of 15 and then at the age of 17 commenced use of the incredibly destructive and addictive drug, ice, which you used on a regular basis three times a week.

11By the age of 18 you had left school, were working as a DJ and found that in that occupation you were given free amounts of ice and ecstasy on a regular basis.  Your habit increased to the point where you were using ice every day.  You also began using GHB, about ten drops daily, and experienced an overdose of it, as have most persons who use that drug regularly.  So, by the age of 18 you had what is called a serious poly substance abuse problem and that led you directly into serious offending and a situation where for the last five years essentially you have been out of gaol for a total of about five or six months.

12In August 2008, you were dealt with by the Melbourne Magistrates' Court on charges of possessing ecstasy, methylamphetamine, cocaine and trafficking amphetamine and GHB.  You were dealt with for possessing a prohibited weapon without exemption or approval, which your counsel informed me was a pair of knuckledusters.  You were charged with using another drug of dependence; with theft and with dealing property suspected of being the proceeds of crime, that is money; possession of cannabis; affray, unlawful assault and driving offences.

13You were apparently involved in an affray at a club where you DJ'd in Prahran, as a result of which police took out a warrant, raided your parents' home, where drugs you were using were stored.  The rest is history and ultimately you were sentenced to an aggregate term of 14 months' imprisonment, 12 months of which was suspended for a period of 24 months, you serving two months in gaol.  You apparently, it would seem, managed to serve out a period of suspension without further difficulty, but it would seem that your use of drugs went on unabated. 

14Ultimately, on 16 December 2010, you were dealt with the Melbourne County Court on charges of trafficking a drug of dependence, namely ecstasy, in a commercial quantity; two other charges of trafficking a drug of dependence; dealing in property suspected of being the proceeds of crime; possessing a drug of dependence; possessing a weapon without exemption or approval and were sentenced to a total term of five years and six months with a non-parole period of three years.

15You were released from gaol in relation to that sentence on 18 January 2012.  Counsel informed me that you were subject to a drug rehabilitation condition as part of your parole period, which lasted for about three months, and in that time took up work laboring with two friends, went to the gym and stayed off drugs.  You were required to attend for counselling to provide urine samples and this you did.  Once the three months elapsed and you ran into an old drug using friend, you immediately went back to your previous drug use, which involved heavy use of ice and GHB.

16Ultimately, as was inevitable because of your drug use, you started mixing with criminal acquaintances and hence found yourself at the premises in Pakington Street, Kew, where your counsel informed me you went because it was a drug house and you knew you could get drugs there.  In any event, at those premises you were offered an array of items, which I have outlined as being the items which are the subject of the first three charges on the indictment, handling stolen goods.  You were offered those items at a cheap rate.  You took them in order to sell them on in order to fund your drug habit.

17As a result of your arrest in these matters, your parole was breached and your earliest release date now is in February 2015.  It appears however this time you have done well in gaol.  You are in the Gorgon unit because you worked and where you are now engaged in full time education, undertaking by correspondence two diplomas through RMIT, one in business and one in marketing.  These are courses which last for four years.

18It appears that gaol was your salvation, it stopped you using ice and it has got you into study.  It has probably got you into the position you should have been had you not used drugs.  In any event, you continue to be supported by your parents.  You have, as long as you stay off drugs, I am satisfied very good prospects of rehabilitation.  I repeat, staying off drugs is the big issue for you.

19I remarked also during the plea on the fact that I regard the handling in relation to Charge 3 as particularly serious.  Those items were clearly part of a major burglary carried out on 19 July 2012.  You were picked up on 20 July 2012.  It was a major burglary of jewellery and other valuable items with a total value of the property stolen being $75,624.  It is my assumption that the fact that you are being offered these items was because you were beginning to move in extremely serious criminal circles. 

20As I said, I regard your possession of those items so soon after burglary most seriously indeed, such that it is my view, notwithstanding the fact that any sentence I impose will have to be served cumulatively to the unexpired portion of parole that you are currently undergoing, that you should receive a further gaol term. 

21As I said to you during the plea, Mr De Luca, you have run out of get out of gaol cards free in a big way.  Any time you choose to offend in the future, you can confidently expect (you will be dealt with by courts now having a look at your priors which involve two appearances before the County Court), you can confidently expect further sentences of imprisonment.  That is the way it is going to go from now on.  That is the way it is going to go clearly if you start using.  Ice is an all-encompassing drug.  If you start using ice again it will take over your life, you will go back to offending, you will be arrested again, you will go back to gaol.  It is as obvious and as clear as that, if you do not attend to your drug problem, if you do not understand that drugs have led you directly to where you are now and will lead you back there again and take the firmest steps in order to ensure you no longer use, you will offend again, as I have said already, you will be back in gaol and probably in a major way.

22In any event, you are still a youthful offender.  I am satisfied, as I have said, you have good support.  You have got the sort of background whereby you should expect a productive and prosperous future.  If you stay off drugs that will happen.

23In my view, I must have regard to totality.  I have regarded the fact that you pleaded guilty at a very early opportunity and at a very early stage in the proceedings.  I must have regard to the fact that you are using your time in gaol usefully and for those reasons I propose sentencing you as follows:

24On Charge 1, you are sentenced to four months' imprisonment.

25On Charge 2, you are sentenced to four months' imprisonment.

26On Charge 3, you are sentenced to eight months' imprisonment.

27On Charge 4, you are sentenced to one month imprisonment.

28I order that the base charge be the sentence imposed on Charge 3.

29I order that two months of the sentences imposed on each of Charges 1 and 2 be served cumulatively to the sentence imposed on Charge 3, giving a total effective sentence of 12 months.  I order that you serve four months before becoming eligible for parole.

30MR McQUILLAN:  As Your Honour pleases.

31HER HONOUR:  I declare that 26 days of this sentence has already been served by way of pre-sentence detention.

32Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of two years and order you serve a minimum term of 12 months.

33All right.  Does that take care of everything?

34MR ELLWOOD:  It does except for the ‑ ‑ ‑

35HER HONOUR:  Outstanding orders?

36MR ELLWOOD:  Restitution orders and Ms Olifent, and what I only seek from my learned friends is that ‑ ‑ ‑

37HER HONOUR:  Look, why do not we leave those until Ms Olifent's matter has been dealt with.

38MR ELLWOOD:  Absolutely, but I was seeking an indication from my friends that they would consent to those orders.

39MR McQUILLAN:  I give that indication, Your Honour.

40HER HONOUR:  All right, then that is fine. 

Thank you very much.  I thank counsel for their assistance in this matter.  We will stand down.  Thank you.

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