Director of Public Prosecutions v Del Nigro
[2017] VCC 1680
•14 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-17-01112
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIELA DEL NIGRO |
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JUDGE: | HIS HONOUR CHIEF JUDGE KIDD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2017 | |
DATE OF SENTENCE: | 14 November 2017 | |
CASE MAY BE CITED AS: | DPP v DEL NIGRO | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1680 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sentence.
Catchwords: Drug trafficking – Commercial quantity trafficking at lower end of range – Plea of guilty – Impressive steps towards rehabilitation – Very good prospects – General deterrence still to assume prominence in sentence.
Legislation Cited: Drugs Poisons and Controlled Substances Act 1981, ss 71AA, 71AC, 73; Crimes Act 1958, s 195; s 6AAA Sentencing Act 1991.
Cases Cited:Akoka v The Queen [2017] VSCA 214; Boulton v The Queen (2015) 46 VR 308; Haddara v The Queen [2016] VSCA 168; Fernando v The Queen [2017] VSCA 208.
Sentence: Total effective sentence of 4 years and 2 months’ imprisonment, with a non-parole period of 22 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Ballek (Plea) Ms K Karamitos (Sentence) | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr P. Dunn QC (Plea) Mr D. Cole (Sentence) | Dean Cole & Associates |
HIS HONOUR:
1 Daniela Del Nigro, you have pleaded guilty to a number of drug-related offences. You have pleaded guilty to one charge of trafficking in a commercial quantity of methylamphetamine[1]. The maximum penalty for this offence is 25 years’ imprisonment.
[1]Contrary to s 71AA of the Drugs Poisons and Controlled Substances Act 1981.
2 You have pleaded guilty to three charges of trafficking in a drug of dependence[2]. The maximum penalty for each of these offences is 15 years’ imprisonment.
[2]Contrary to s 71AC of the Drugs Poisons and Controlled Substances Act 1981.
3 You have pleaded guilty to two charges of possession of a drug of dependence (for a trafficking purpose)[3] in respect of various drugs of dependence. The maximum penalty for each of these offences is five years’ imprisonment.
[3]Contrary to s 73(1)(c) of the Drugs Poisons and Controlled Substances Act 1981.
4 You have also pleaded guilty to one summary charge of dealing with property suspected of being the proceeds of crime[4]. The maximum penalty for this offence is two years’ imprisonment.
[4]Contrary to s 195 of the Crimes Act 1958.
5 You are now 28 years of age and were 27 years of age at the time of this offending.
Summary of offending
6 Your offending is detailed in the summary of prosecution opening for plea, which was tendered as Exhibit 1. Your offending arises out of a search conducted by police on 10 October 2016 on a vehicle you were driving.
7 On that day, you were seated in a Hyundai Accent, which you had rented a month earlier, in a residential area in Endeavour Hills. Police stopped next to your vehicle. You said that you were there to collect money from a friend. Police instructed you to drive around a corner into the next street and park the car.
8 Police then conducted a search of this vehicle and later your person and located and seized a number of drug substances and related drug trafficking paraphernalia.
9 Police also located $25,100 cash in a small cardboard box on the front passenger seat. This forms the basis of the summary offence, dealing with property suspected of being the proceeds of crime.
10 You were interviewed that morning and admitted to using drugs, but denied possessing the drugs for sale.
11 A number of phones seized from you had a number of conversations relating to the trafficking of drugs.
12 Analysis of the various substances seized revealed that you had the following drugs of dependence, in the following quantities, in your possession:
· 175.4 grams of powder and crystals containing methylamphetamine, mostly at 78 per cent purity, making a total of 135 grams of pure methylamphetamine. This forms the basis of Charge 1, trafficking in a commercial quantity of methylamphetamine.
· 32.2 grams of a powder containing cocaine. This forms the basis of Charge 2, trafficking in a drug of dependence (cocaine).
· 1964.2 grams of 1,4-butanediol. This forms the basis of Charge 3, trafficking in a drug of dependence (1,4-butanediol).
· 63.4 grams of tablets containing alprazolam, mostly at two per cent purity, making a total of 1.3 grams of pure drug. This forms the basis of Charge 4.
· 2.7 grams of powder/crystals containing MDMA. This forms the basis of Charge 5, possession of a drug of dependence.
· Tablets containing less than 2.5 grams of clonazepam, less than two grams of diazepam and undetermined amounts of temazepam and oxazepam. This forms the basis of Charge 6, possession of a drug of dependence.
Gravity of offending
13 I now turn to an assessment of the gravity of the offending.
14 The sentencing regime for drug trafficking offences is a quantity-based regime. While quantity is not determinative of seriousness, it is a significant factor and all other things being equal, the larger the quantity, the more serious the offence. The potential for harm to the community is partly measured by the quantity of the prohibited drug involved.
15 In respect of the most serious charge, of trafficking in a commercial quantity, the maximum quantity of methylamphetamine falling within the offence of trafficking simpliciter is less than 100 grams pure. You were in possession of an amount of pure methylamphetamine which was 1.35 times the threshold for a commercial quantity. Whilst this was more than fractionally over the threshold, it is a long way short of the large commercial quantity threshold of 750 grams pure.
16 In relation to the trafficking cocaine charge, you were in possession of an amount which was 10 times the trafficking threshold. I accept, as submitted by the prosecution, that this was a substantial amount.
17 In relation to the trafficking 1,4-butanediol charge, you were found in possession of an amount, 1,964 grams, which was just shy of the commercial quantity threshold of two kilos. As your counsel frankly acknowledged, "there was quite a bit” of this drug. Clearly, this is a serious example of that offence.
18 Finally, in relation to the trafficking of alprazolam charge, you were found in possession of an amount which was around two times the trafficking threshold, being 0.5 grams pure.
19 The drug-related items and cash, alongside the quantities involved, demonstrate the scope of your criminality. You were actively engaged in selling drugs.
20 However, you fall to be sentenced for trafficking in respect of a single date, on the basis that you possessed the drugs in question for the purpose of trafficking. This is to be contrasted to carrying on a drug business on an ongoing commercial basis over a period of time.
21 There was no evidence of significant enrichment. Whilst there was the cash located in a cardboard box in the vehicle, your counsel said this money was the money of your supplier. As I will explain in a moment, I accept that the origin of your criminal behaviour was your extensive drug habit, which is relied upon as an explanation for your offending, but, I hasten to add, not an excuse. You were leading a chaotic, heavily drug-affected and somewhat impoverished lifestyle. Whilst it is difficult for me to draw any specific conclusions about the ownership of the cash, I am satisfied that you were not someone who entered into the trade for greed or significant personal profit. You did so to feed your significant habit and you appeared to be leading, more or less, a hand to mouth existence.
22 Focusing upon the most serious charge, being the commercial quantity trafficking charge, it was common ground at the plea that having regard to all the objective factors, including the quantity, your offending fell towards the lower end of the range for commercial quantity. Counsel for the prosecution, however, submitted that it was not at the lowest end. I accept that submission.
Personal circumstances and context to the offending
23 I now turn to your personal circumstances and to the context of this particular offending.
24 I now turn to your personal circumstances and the boyfriend of this offending.
25 You are now 28 years old.
26 You are currently residing with your parents in the family home in Clayton South and your family remain extremely supportive of you. Your mother, your father, your older brother and your grandmother were in court at the plea. Your mother gave evidence.
27 You grew up in the south-eastern suburbs and attended Sacred Heart Girls College in Oakleigh. Your parents were hard-working Italian immigrants.
28 You completed Year 12 in 2006. In 2008, you started your own fashion business in Chapel Street with a loan from your parents.
29 You commenced using drugs on a casual basis. By 2009, this included casual use of methylamphetamine, known as ice. In 2010, your business failed and you were declared a bankrupt. You moved back home.
30 In 2014, your drug use had moved from casual to daily in respect of ice and GHB. Around this time, you also received a large payout for a car accident you were involved in as a child and you used this money to go overseas and buy
a car. By the end of this year, you were charged with the drug possession offences, which I will come to and for which you have already been dealt.
31 Your drug use was continuing to escalate in 2015. You had broken up with
a long-term boyfriend. You were working intermittently. You were still living at home and around this time your father was diagnosed with liver cancer.
32 By 2016, you were living a very chaotic lifestyle. You were in and out of jobs. In June, you were involved in a car accident and as a result, charged with driving while impaired by a drug. You received another substantial payout from the insurance company. There was considerable stress at home as your father received treatment for his liver cancer. Your parents decided that the best thing for you would be go and stay with relatives in Italy. You were only, in the end, with family in Italy for a couple days before you took off.
33 When you returned to Australia in September, you were living in a rented car. You were using drugs daily and selling to support your drug habit. The money you received for your payout had gone. You were arrested a month later.
34 It is this chaotic lifestyle, where you were heavily drug addicted and caught up in a user/dealer cycle, that your counsel submitted - provided the particular context to your offending. When you were arrested, you were attempting to recover some money that was owed for drugs sold. You said as much to police.
35 You were extremely drug affected at the point of arrest. You were subsequently admitted to St Vincent’s Hospital, where you were placed in ICU and were in
a coma. You remained there for four days before being transferred to the Dame Phyllis Frost Centre.
36 Mr Ian Joblin, forensic psychologist, observed that by early 2016, your drug problems had become “severe” and pervaded virtually every aspect of your functioning. Mr Joblin went on to give the following opinion in one of his reports tendered on the plea:
I did not consider her to be psychotic. She has had serious problems involving the drug environment. She has demonstrated a tendency to become psychologically and physically dependent on one or more substances. She has developed a craving for a substance and used it in increasing amounts to deal with the increase in tolerance and to avoid withdrawal. It was under those conditions that she became involved in the offences.
37 Clinical psychologist, Dr Matthew Berry, in a report tendered on your plea, diagnosed that you suffered from a stimulant use disorder. Dr Berry gave an opinion that your drug use had been a coping strategy to deal with the difficulties that you experience in tolerating emotional distress and communicating your interpersonal needs. Likewise, forensic drug and alcohol counsellor, Mr Arthur Tsonsis, gave the opinion that your substance abuse has been a coping mechanism to deal with complex emotional needs, arising out of traumatic childhood experiences.
38 Your mother gave evidence on your plea about your circumstances around the time of your arrest. Your mother said that it was a really bad time. You were not often living at home. When she did see you, you looked like a zombie and much older than your years. You were very skinny and your skin was in poor condition. You were in such a bad condition that your mother would find you urinating in the house, in places other than the toilet.
39 These matters were not relied upon as an excuse or in mitigation of your moral culpability under Verdins. Rather, they were really relied upon to provide an explanation for serious offending by a young woman with a very limited criminal history. They also go to my assessment of your prospects of rehabilitation and I will return to that. I accept these matters put to me.
Criminal history and subsequent matter
40 I now turn to your criminal history and to one subsequent matter.
41 You have one relevant prior matter. On 21 April 2015, at the Melbourne Magistrates’ Court, you were sentenced for two drug possession offences: possession of Gamma Hydroxybutanoic Acid (“GHB”) and possession of methylamphetamine. You were, without conviction, placed on an adjourned undertaking to be of good behaviour for 12 months and to complete a drug education program.
42 I am advised that you did not complete this drug education program.
43 You have also been dealt with subsequently for charges of driving a motor vehicle impaired by a drug and possession a drug of dependence. At the Melbourne Magistrates’ Court on 15 September 2017, you were convicted and fined $800 for these offences. The commission date for this offence is in July 2016, meaning that it pre-dates the offending before me. It is not really
a subsequent in that sense.
44 I was not asked by the prosecution to use this matter in an adverse way and
I will not. However, this information is relevant, in a favourable way to you, insofar as it confirms that you have not been charged with any further offences occurring after 10 October 2016.
Plea of guilty and remorse
45 You pleaded guilty at your committal hearing, before any witnesses were called to give evidence. I accept that this is an early plea of guilty.
46 You receive credit for the objective utilitarian benefit, through the saving of time and resources associated with running a contested committal and trial.
47 I accept that your entry of the plea of guilty is also representative of some evidence of remorse and a willingness to facilitate the course of justice.
48 Your counsel also relied on your expression of remorse beyond your plea of guilty. I accept that this is so. Ian Joblin, forensic psychologist, observed in
a report tendered on your plea, that your feelings of guilt were palpable, particularly in respect of the impact of your offending on your parents.
Mr Tsionis observed in a report also tendered on your plea, that the significant changes you have made to your lifestyle demonstrated your remorse and
a desire for lasting change.
Pre-sentence detention and time in residential rehabilitation
49 I turn to the question of your residential rehabilitation.
50 You have spent 33 days in custody on the charges from the date of your remand on 10 October 2016, until you were granted bail on 11 November 2016. I will apply this as pre-sentence detention shortly.
51 You were granted bail on 11 November 2016 to allow you to undertake
a residential drug treatment program and this was a part of your bail conditions. Overall, you completed more than seven months of intensive drug treatment, first in residential rehabilitation and then in transitional housing, both managed by Arrow Health. Alcohol and drug counsellor at Arrow Health, Diana Dalheimer, gave evidence at your plea about your engagement with these programs.
52 Between 11 November 2016 until 12 February 2017, you completed three months as a resident at the Woodend facility, undertaking the residential treatment program.
53 Ms Dalheimer explained that this was an inpatient program, with significant restrictions. Throughout the three months, you were restricted from leaving and were required to remain abstinent, subject to random urine drug screens, complete daily group work, individual counselling and various drug education and relapse prevention programs.
54 Ms Dalheimer gave evidence that you were an exemplary patient in the program and that you were accountable, responsible and acted as a positive role model to other residents.
55 From 12 February 2017 until 10 July 2017, you were a resident at an Arrow Health transitional house in Malvern. It continued to be a condition of your bail that you reside at an Arrow Health facility.
56 Ms Dalheimer explained that this was supported accommodation, with a very structured program. You acted as a Lead Tenant during your stay, which required you to be accountable for yourself, but you were obliged also to identify breaches of the rules by other residents. You were subject to a curfew and random urine screens twice a week. You could apply for leave to go home on the weekend. During the week, after group sessions or group therapy, you were free to come and go as you pleased.
57 I have been asked to take your time at Woodend and at Malvern into account, in way which is analogous to, but not the same as, Renzella time. That is, that you should receive some credit for the time you have spent in rehabilitation facilities in recognition of the punitive nature of such a residency.[5] The credit that you can receive for this time is a question of fact and degree. It does not involve a mathematical reduction of any sentence of imprisonment that I would otherwise have imposed.
[5]Akoka v The Queen [2017] VSCA 214 (“Akoka”).
58 While at Woodend, you had effectively lost your liberty. In contrast, your five months at Malvern involved much less severe restrictions on your liberty.
59 As I have said, your time at Woodend seems to be the very kind of time that this principle, recently stated in the case of Akoka, is directed towards and I will this time into account in accordingly. To a materially lesser extent, I will also take your time at Malvern into account.
Prospects of rehabilitation
60 I have already said something about some of the significant steps you have taken towards your rehabilitation.
61 As Ms Dalheimer observed in her evidence, not everyone is able to complete these programs and there is a small rate of success. This stands to your great credit.
62 Most importantly, the evidence is that you have been abstinent from drug use since you were bailed in November 2016. I have also recently received a number of negative urine drug screen results. This is all extremely encouraging.
63 Since you returned to your parents’ house in July this year, you have continued to follow a structured rehabilitation program with regular individual drug and psychological counselling, attendance at group therapy sessions, participation in a role model program and continued random urine drug screens.
64 You have also engaged with Dr Matthew Berry for psychological counselling. Dr Berry indicates that you have already made some progress and there have been “breakthroughs” by you in understanding your emotional processing and responses.
65 These individual counselling sessions have been complimented by regular attendance at Narcotics Anonymous and group sessions at Arrow Health.
66 You are also working part-time as a receptionist and have been volunteering at charity Food for Change, assisting to provide food for the homeless.
67 Ms Dalheimer accepted that there was still a way to go; she said it is a lifelong illness. Your counsel correctly said that you have begun a long and difficult road. You still have some way to travel. Mr Joblin observed that it would be “naïve” to consider your problems were over and gave the opinion that the strength of your addiction means you will require some ongoing professional assistance for some considerable time.
68 What you have achieved thus far is really quite impressive and somewhat exceptional. I am as confident as I can be in relation to someone in your position – a recovering serious drug addict. Your prospects are almost entirely dependent upon controlling your addiction. I am cautiously optimistic that you will do this. To adopt the phrase used by Mr Joblin, you have “considerable potential” in respect of your prospects of rehabilitation. If you continue along this road of recovery, and remain abstinent, your prospects are very good.
Balancing factors
69 The primary submission of your counsel was that I should impose a combined sentence of imprisonment, followed by a Community Correction Order (CCO). Your counsel ultimately conceded that the charge of trafficking in a commercial quantity was sufficiently serious as to require some immediate term of imprisonment. This must be so.
70 I have considered whether a term of imprisonment of up to one year, in combination with a lengthy CCO with conditions, can adequately meet all the purposes of sentencing. I accept a community corrections order disposition can be both punitive and rehabilitative. I have, however, concluded, that certain sentencing purposes — just punishment, denunciation and general deterrence and the protection of the community — cannot be sufficiently served by the making of a CCO, even with onerous conditions, and even in combination with one year’s imprisonment. It is for that reason that I did not have you assessed for a Community Corrections Order.[6]
[6]Boulton v The Queen (2015) 46 VR 308.
71 These principles, especially general deterrence, assume prominence for serious drug trafficking offending. I accept that these factors are not as significant as they might be for someone drawn to this trade by the lure of large and easy financial enrichment. That was not your motive. But given the quantities involved, and in particular the commercial trafficking charge, these principles still play an important role in your case. As your counsel said, addiction is not an excuse for this kind of offending.
72 The law also says that there should be a greater focus on general deterrence for the trafficking of methylamphetamine than when another drug is trafficked.[7]
[7]Fernando v The Queen [2017] VSCA 208 [73]; Haddara v The Queen [2016] VSCA 168 [66]-[67].
73 I must also impose an overall sentence which is appropriate and just for the total criminality involved here. You fall to be sentenced for multiple drug offences. The overall sentence must reflect this.
74 My qualified optimism for your future significantly moderates the weight to be placed upon specific deterrence. That said, the uncertainty which still exists for someone in your vulnerable state of recovery, and you prior possession offences, means that some weight must still be given to specifically deterring you from engaging in this kind of offending.
75 Having balanced all of the factors, I have concluded that only a term of imprisonment with a non-parole period is appropriate in your case. Your rehabilitation prospects are relevant to all components of your sentence, but I have decided to impose a shorter non-parole period than I might otherwise have imposed, in recognition of your rehabilitation prospects. This will allow for the possibility of relatively early release on parole and then supervision by the parole board.
Sentencing
76 On Charge 1, trafficking in a commercial quantity of methylamphetamine, I convict and sentence you to three years and four months' imprisonment – this is 40 months.
77 On Charge 2, trafficking in cocaine I convict and sentence you 12 months’ imprisonment.
78 On Charge 3, trafficking in 1,4-butanediol I convict and sentence you to 24 months’ imprisonment.
79 On Charge 4, trafficking in alprazolam, I convict and sentence you to four months’ imprisonment.
80 On Charge 5, possession of MDMA, I convict and sentence you to two months’ imprisonment.
81 On Charge 6, possess clonazepam, diazepam, temazepam and oxazepam, I convict and sentence you to two months’ imprisonment.
82 On Charge 20, the summary charge of possess proceeds of crime, I convict and sentence you to five months’ imprisonment.
83 I direct that the sentence on Charge 1, that is the trafficking in commercial quantity, is the base sentence.
84 I direct that three months of Charge 2; five months of Charge 3; one month of Charge 4 and one month of Charge 20 be served cumulatively upon each other and upon Charge 1.
85 This means that I have imposed a total effective sentence of four years and two months’ imprisonment.
86 I set a non-parole period of 22 months.
87 I declare that 33 days’ imprisonment have already been served under this sentence and I direct that this fact be entered into the record.
88 I also declare that, pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a sentence of six years and three months’ imprisonment, with a non-parole period of four years. Anything else, counsel?
89 MS KARAMITOS: Just the orders, Your Honour.
90 HIS HONOUR: Yes, I have signed all the orders. So I have signed the disposal orders, the forfeiture orders and also the orders in relation to the taking of a forensic sample.
91 MS KARAMITOS: Yes, Your Honour.
92 HIS HONOUR: Multiple copies have been signed. Thank you. Anything else?
93 MR COLE: Does Your Honour have a requirement to advise in relation to the forensic sample in terms of the procedure and potential use of force?
94 HIS HONOUR: I think you might be right.
95 MR COLE: I think you are obliged to state that, Your Honour.
96 HIS HONOUR: Yes, you are right.
97 Ms Del Nigro, I have made a forensic order here, which involves the taking of a forensic sample from you and I am obliged to inform you that if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that?
98 OFFENDER: I do.
99 HIS HONOUR: All right. Thank you. Thanks very much, Mr Cole, for that reminder.
100 MR COLE: As Your Honour pleases.
101 HIS HONOUR: Well if Ms Del Nigro can be taken away please.
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