Director of Public Prosecutions v Defrenza

[2016] VCC 990

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-02069

DIRECTOR OF PUBLIC PROSECUTIONS

v

VINCENT DEFRENZA

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2016
DATE OF SENTENCE:	11 July 2016
CASE MAY BE CITED AS:	DPP v Defrenza
MEDIUM NEUTRAL CITATION:	[2016] VCC 990

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Possess methamphetamine and equipment for purposes of trafficking in drug of dependence – Relevant criminal record – History of alcohol and drug abuse

Sentence:Convicted and sentenced to Community Corrections Order duration of three years with mandatory and other conditions – Ancillary order – Disposal Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ballek	Solicitor for Public Prosecutions
For the Accused	Mr R. Stransky	Patrick Dwyer Solicitors

HER HONOUR: 

1Vincent Defrenza, you have pleaded guilty to one charge of possessing a substance, namely methamphetamine, and equipment for the purpose of trafficking in a drug of dependence.  The maximum penalty for this offence is ten years' imprisonment.

2The maximum penalty reflects the seriousness with which Parliament regards this offending.

3Your offending was opened as follows.  I was told that you are 48 and you were 46 at the time of the offending.  As at April 2014, you were living on the Mornington Peninsula with your children, your twin brother and one of your brother's children.  On 15 April 2014, police executed a search warrant at your home.  By way of context information only, I was told that police found a large cannabis plant in the back yard and some dried cannabis leaf which belonged to your brother, Robert.  He was charged in relation to this matter.

4Police further searched the premises and found solvents including acetone, xylene and toluene in a rear shed.  Police then searched a garage attached to the house and located scientific glassware, caustic soda, ephedrine tablets and literature relating to drug manufacture.  Police also found glass jars containing unknown liquids and powders.  You told police that all the items belonged to you and that you had been trying to extract ephedrine from the tablets located in the garage.

5Later that day, officers from the Chemical Biological Radiological, Disaster Victim Identification Unit and Victoria Police Forensic Services Centre attended your premises.  The officers conducted a safety assessment and seized and photographed relevant exhibits.  A total of 44 exhibits relating to the manufacture of drugs were seized.  Items seized included flasks, funnels, beakers, bottles, jars, an electric hotplate and a condenser.  Washings taken from various items were later found to contain methylamphetamine.

6You were arrested and taken to the Rosebud Crime Investigation Unit where you were interviewed.  You made partial admissions to being in possession of substances, equipment and material for trafficking but denied manufacturing or selling drugs.  Among other things, you said that you had bought the glassware over the last ten years and some pieces pre-dated your incarceration in 2001.

7You said you did not use the glassware to manufacture amphetamine but just wanted to see what was in the ephedrine tablets out of curiosity.  You said you were given the ephedrine tablets by a friend of a friend, and that you were curious to know the difference between ephedrine and pseudoephedrine.  You said you had been buying and using "ice" once or twice a week for the previous six months.  You had not made any drugs since you were caught the first time.

8On 22 October 2014 at a committal case conference hearing the matter resolved and was adjourned for a summary jurisdiction application.

9On 25 November 2014 the summary jurisdiction application was refused and the matter proceeded by way of straight hand-up brief.  A plea hearing was listed on 3 March 2015.

10On 3 March 2015, you indicated a desire to contest the charge.  A mention was listed for 6 March 2015 whereupon the matter was set down for trial on 7 March 2016.

11The matter resolved on 4 March 2016 and you were arraigned on 7 March 2016.

12Mr Defrenza, your offending is serious and deserving of a punishment which is just in all of the circumstances.  By your plea of guilty, you have admitted that you were in possession of the equipment and materials seized by police for the purposes of manufacturing a drug of dependence - that is, for the purposes of trafficking.

13While you were frank and co-operative with the police in some respects, clearly, you were not being frank when you said that you were just curious about the various substances you were dealing with.  Such an explanation is all the more fanciful in view of your criminal history, and the number of tablets at your disposal which were apparently given to you by a friend.  I accept that you had not set up a laboratory with all of the pieces of equipment that police found, but you had set up an extraction process in respect of the ephedrine tablets.

14Your conduct must be strongly denounced and strong weight must be given to general deterrence in a bid to deter others who are tempted to behave as you have.

15You have relevant prior convictions and I have read the sentence of His Honour Judge Barnett in respect of these.  On 17 October 2001 you were convicted of two charges of trafficking amphetamine and one charge of handling stolen goods.  You were sentenced to four years' imprisonment with a non-parole period of 24 months.  Further, you have a prior matter for unlawful assault in October 2006 for which you received a 30 day sentence of imprisonment which was partially suspended, with the immediate part of the sentence being seven days, being time served.

16On 8 May 2008, you were convicted of two charges of drive whilst disqualified and sentenced to an aggregate gaol term of two months on each charge which was wholly suspended for 12 months.

17On 21 April 2010, you were fined and convicted for using a drug of dependence.

18On 26 May 2011 you were sentenced to three months gaol to be served by way of an intensive corrections order for unlicensed driving, exceed prescribed concentration of alcohol, and exceed speed limit by less than 25 km/hr.  Predating all of these matters was a matter which was referred to at the plea hearing and I was provided with a criminal record in relation to this matter today, that is 1 October 1997, you were dealt with in this court for six charges of defrauding a public authority of the Commonwealth.  In relation to those matters you were sentenced without conviction to recognisance to be of good behaviour, with such recognisance being in the sum of $1,000 and ordered to pay $750 compensation.

19Returning to the matters for which you were sentenced by His Honour Judge Barnett, the offending which gave rise to the first charge of trafficking concerned the discovery by police of scientific glassware and a hotplate holding a flask which contained a substance capable of producing propropane, which is used in the production of ecstasy.  This offending took place at a house occupied by you in Carrum in February 1999.

20The offending giving rise to the second charge concerned you again engaging in the manufacture of drugs-this time, methylamphetamine.  This offending was discovered on 3 August 2000, when an explosion and subsequent house fire occurred in the garage of a house in Mordialloc.  Again, containers, scientific catalogues, laboratory equipment and various relevant documents were found.  Apparently, when you heard the explosion you went outside to see what was happening and told your de facto wife to leave with your child who was 17 days old at that time.

21Therefore, not only have you committed relevant offences before, but you have had first-hand experience of the dangers of clandestine laboratories.  I note that you were 34 years old when you were sentenced for the previous crimes in this regard.  On your own admission, on the occasion before me, you were in possession of equipment and had apparently conducted an extraction procedure in respect of ephedrine tablets.  I understand that you had 30 or 40 tablets, which is not an insignificant quantity.

22It seems to me, Mr Defrenza, that despite being incarcerated for the past offending when you were 34 years old, and being given some chances after this in respect of other breaches of the law, you have not learned a great deal from the sanctions that have been imposed in the past.  Further, you have not learned from the dangers that drug manufacture poses, again being prepared to house equipment for the purposes of manufacture in the garage of the property where you resided on the occasion before me.  I note, with concern, that there were children in the house when you committed the offence for which I now sentence you, albeit that the equipment was in the garage and in a somewhat dismantled state.

23I take into account your plea of guilty and the stage at which you finally indicated that this would be the course you would adopt.  This was late in the piece after a failed summary jurisdiction application and failed change of plea application.  Still, you did not run a committal hearing and therefore, you have saved the witnesses the time and trouble of contested proceedings at committal and in this court and you have saved the community the time and expense of contested proceedings in these two respects.  I allow for a discount which is fairly significant in all of the circumstances.

24I take into account your background and present circumstances.

25You are now 48 years old.  Your parents were both born in Italy and migrated to Australia in the 1960's.  Your father had been a boiler maker in Italy but embarked on various businesses when he came here.  Your mother was a cook and also assisted your father in his businesses.  

26You are educated to Year 12 but you did not sit your final exams.  For some reason, your parents sent you to live with your aunt in Italy after Grade 4 and you returned to them in Form 2.  You attended various secondary schools, ending up at Frankston High School.

27After you returned from Italy, you made leather ties and sold these for a while.  After leaving school, you worked in various businesses owned by your father, and you worked for a property development company for three years.  After this, you worked with your parents in their two tobacconist stores but these were closed in about 1991, after charges were laid in respect of licensing issues, the charges to which I have previously referred in your criminal history relate to that time.

28You then worked as a plasterer and this was your trade up until you were gaoled in 2001.  You resumed this work when you were released from gaol, and this is your current occupation.  Until late last year when your brother became ill, you worked with him as a sub-contractor in the plastering profession.

29You commenced using amphetamines and crystal methylamphetamine when you were 23 years old.

30When you were 29 years old you commenced a relationship with Fiona Johnson.  You have two sons from that relationship who are now 15 and nine years old.  Unfortunately, both you and Ms Johnson had a rather volatile relationship, fuelled by excessive alcohol and drug consumption.  When you were 43, you left Ms Johnson and you are the full time carer of your two sons.
Ms Johnson has supervised access to your boys every fortnight.

31You live at a house in Tootgarook which is owned by your parents but you pay the mortgage and other expenses on the property.  Your brother and his 16 year old daughter also live at the property.  Unfortunately, your brother contracted meningitis late last year.  He was hospitalised after suffering two strokes and he was in a coma for some time.  He is bedridden at home and his prognosis is uncertain.  Although your mother had come to help out as at the time of the plea hearing, and as I understand is still helping out, you have helped with your brother's care as well as being a carer for his daughter and your boys.  Your parents reside in Italy, as does another of your siblings.

32In 2011, you were diagnosed with ADHD and were prescribed medication.  However, after three years you took yourself off that medication and as I understand it returned to ice as a form of self-medication in relation to this condition.  Similarly, also you were dealing with medication which you were taking for an injury previously sustained as I understand the situation.  

33You frankly admit to using a maximum of two points of amphetamine or methylamphetamine per week.  According to some new criteria that the State government introduced, you do not qualify as having a drug problem.  However, in view of your history, I cannot accept that this is not an issue, notwithstanding that you have apparently cut down your drug usage significantly in more recent times.  The fact of the matter is that you should not be using drugs at all, and you are old enough to have been able to seek some help with this problem by now.  However at the plea hearing, you had not done so as you had apparently been too busy.  Further steps taken in this regard have been meagre and I will refer to those in a moment.  Being busy is no excuse, Mr Defrenza. You are old enough to know that abstaining from illicit drug use is most important to your overall rehabilitation.

34I was told that you are a tinkerer and like to see how things work - that it was this curiosity that led to the offending.  It may well be that you are a tinkerer and have an interest in chemical processes, Mr Defrenza, but by your plea, you accept the possession of the materials, equipment and substance went beyond this, and that you had a criminal purpose in mind insofar as these were concerned.

35Some reliance was placed on a report from Mr Cummins psychologist by your counsel.  The report is somewhat dated as it was prepared on 26 February 2015 and his opinion was based on one interview with you on 11 February 2015.  
Mr Cummins was of the view that you suffered from an adjustment disorder with mixed anxiety and depressed mood, and that this had now become chronic.   He said that you presented mildly depressed and mildly anxious when he interviewed you.  He said that your mental health first declined after the closure of the tobacco shops which then saw you turn to drugs and subsequently develop a drinking problem.  Mr Cummins did not appear to conduct any formal assessment of you or conduct any risk assessment, although he explained in court today that in the circumstances of your offending that was not a measure that could be taken.

36Ultimately, I required further evidence from Mr Cummins in respect of his report and he has now given evidence which confirm the matters in his report, although he said that he and you accepted that a number of the items in your possession for the purposes of the offending before me had been acquired since your previous offending rather than being leftovers from that time.  Matters contained in his report were largely confirmed by your GP, Dr Imeneo, who has been treating you for about ten years, off and on.  He also spoke well of your character which I have taken into account.

37Mr Cummins said that the fact that you had taken some steps toward addressing your ADHD and were re-engaging with a psychiatrist was encouraging, but there was not a formal risk assessment that he could have conducted in relation to offending of the kind you had engaged in.  He said that you were more depressed upon interview this morning than when he had previously interviewed you but you had not been suicidal and were not presently suicidal.  On balance, I accept that your mental health would make time in gaol harder than for someone without such issues and that your mental health is at risk of decline if you were to serve a gaol term.

38I also accept that any gaol term will be more difficult for you because of your concern for your sons, your brother and his daughter.  I also accept that incarceration would impact on your business and its reputation as you are the only one keeping it afloat.  Unfortunately, this is the impact that criminal offending can have on anyone's livelihood and reputation.

39You have been to gaol before and I understand that you are anxious not to return there, especially because of your responsibilities at home.  You had a number of those responsibilities when you chose to commit the offence now before me, but these were apparently not enough to deter you; nor was your previous stint in gaol.  I have factored in that your relevant prior matters occurred a fairly long time ago, although, you have breached the law in other ways a little more recently. You have a good work ethic and a roof over your head as well as a good deal to inspire you to stay out of trouble.  Although you took a tortured course before finally entering a plea of guilty, you were rather co-operative with the police when you were arrested.  In all of the circumstances, I find that your prospects of rehabilitation are fair and that I ought place moderate weight on specific deterrence and protection of the community.

40Your counsel submitted that a community corrections order was appropriate in your case.  The learned prosecutor submitted that this was within the range both on the last occasion and again today.  I had some difficulty with this in view of the weight which I must attribute to all relevant sentencing factors and the seriousness of your offending.

41Without committing to the course submitted to be appropriate, I adjourned the matter and ordered a full assessment of you by Community Corrections and their report is now to hand.  I indicated that it would be in your best interests to embark on some rehabilitative steps in respect of your drug use, and return to prescription drugs for your ADHD, and to provide me with documentary evidence in respect of such positive steps.  It appears, you have taken some steps to address these issues, but it appears but they are fairly meagre and you have taken them very late in the piece.  You are now on Ritalin which has reduced your desire for illicit substances but you are still taking these and it is very early days indeed.  Mr Cummins spoke today of your avoidant personality and it seems that despite the threat of immediate gaol, you have chosen to continue on with your drug abuse then obtain some professional attention at the last minute before the further plea hearing.  I am not too impressed, Mr Defrenza - it is time for you to face the reality of your situation.

42You have behaved very foolishly and wilfully on the occasion of the offending before me.  Had the scale of what you were doing been any larger or more organised, I would have had no hesitation in sending you to gaol for a significant period.  However, in view of the Crown's attitude, the matters in mitigation, the age of the relevant prior matters, and the fact that you seem to have finally reached a stage perhaps where you are prepared to live a responsible, good life, I will give you one chance.  It is going to be very difficult for you as you will have to finally address your drug issues as these are very much linked to your offending.  Make no mistake, if you put a foot wrong, you will be very hard pressed to avoid going to gaol.

43Would you please stand up.  You are convicted of the offence.

44I make a disposal order in the terms set out in the document handed to me which is not opposed by you.

45I propose that you undergo a community corrections order for a period of three years.

46I intend to place you on a community corrections order but I can only do this with your consent so please listen carefully to the order that I propose.

47As I have said, the order would run for a period of three years and the mandatory terms that would apply to the order, which apply to all community corrections orders are as follows.

48You must not commit another offence for which you could be imprisoned during the time that the order is in force;

49You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011; you must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);

50You must report to the Rosebud Community Corrections Centre within two clear working days of today;

51You must let a community corrections officer know within two clear working days of you changing your address or job;

52You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his/her delegate);

53You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his/her delegate).

54The conditions that apply in addition to the mandatory terms listed are:-

55You must perform 150 hours unpaid community work within the next three years.

56You must be under the supervision of a community corrections officer for a period of three years.

57You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the Regional Manager.

58You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as directed by the Regional Manager.

59You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager.  Do you consent to the terms and conditions of the order?

60OFFENDER:  I do.

61HER HONOUR:  I should tell you that if you do not comply with all of the requirements of this order, then you will face breach proceedings before me.  You will then be sentenced in relation to the breach and you will be re-sentenced in relation to the charge, in which case you may well be sentenced to a period of imprisonment.  I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.

62Do you understand this Mr Defrenza?

63OFFENDER:  I do.

64HER HONOUR:  Do you maintain your consent to the order?

65OFFENDER:  Yes, I do.

66HER HONOUR:  Therefore in relation to the charge, you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set out.

67If not for your plea of guilty I would have sentenced you to three years' imprisonment with a non-parole period of two years’ imprisonment.

68I will ask your counsel to assist you with the signing of the community corrections order and you may leave the dock now and approach your counsel in order to do so.  I have signed the community corrections order, the report from Dr Imeneo, will be given an appropriate exhibit assignation.  It will be Exhibit 4.  Thank you.  Was there anything further?

69MR BALLEK:  No, Your Honour.

70MR STRANSKY:  No, Your Honour.

71HER HONOUR:  All right.  Thank you.  We will now adjourn.