Director of Public Prosecutions v Delic
[2012] VCC 853
•25 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00695
CR-11-00696
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MILORAD DELIC MAURIZIO GENATTO SCALERA |
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JUDGE: | His Honour Judge Dean | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 June 2012 | |
DATE OF SENTENCE: | 25 June 2012 | |
CASE MAY BE CITED AS: | DPP v Delic & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 853 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Stefanovic | O.P.P |
| For the Accused Delic For the Accused Scalera | Mr S Johns Mr C Mandie | Balmer & Associates Emma Turnbull |
HIS HONOUR:
1 Milorad Delic, you have pleaded guilty to one charge of trafficking in a drug of dependence namely methylamphetamine contrary to s.71AC of the Drugs Poisons & Controlled Substances Act 1981. The maximum penalty for that offence is 15 years imprisonment.
2 You have also pleaded guilty to one charge of possession of a drug of dependence namely methylamphetamine contrary to s.73 of the Drugs Poisons & Controlled Substances Act 1981, and the maximum penalty for that offence is five years imprisonment.
3 Maurizio Genatto Scalera, you have also pleaded guilty to one charge of trafficking in a drug of dependence, namely methylamphetamine, contrary to s.71AC of the Drugs Poisons & Controlled Substances Act 1981 and one charge of possession of the drug of dependence, namely methylamphetamine, contrary to s.73 of the Drugs Poisons & Controlled Substances Act 1981.
4 A summary of prosecution opening was read to the court and your respective offending may be summarised as follows-
5 On 20 May 2010, investigating police and members of the Clandestine Laboratory Squad conducted surveillance of a disused chicken farm located at 808 Moorooduc Highway, Mornington. The chicken farm contained seven large disused chicken sheds and a number of other outbuildings and sheds and was leased by a person known as Michael Carton. Carton in turn sub-leased the sheds to individuals or businesses for private or commercial purposes and one of the sheds was used by you, Delic, for storage and for the repair of boats that you owned.
6 During the course of the surveillance, police observed you Delic leave the premises and return to them in company with your co-accused Scalera and another man, Hassan Taiba. At approximately 1 am on 21 May 2010, members of the Special Operations Group forced entry into the chicken shed and there located you Delic and Scalera and Taiba. Upon entry by the investigating police, Taiba and Scalera were in the vicinity of an operating clandestine methamphetamine laboratory and you Delic were located carrying a torch in the vicinity of the front of the shed. As the police entered the premises, you Scalera attempted to avoid them and disposed of the contents of the glass bottle by pouring clear liquid on to the ground.
7 An examination of the premises revealed the clandestine methylamphetamine laboratory set up and operating and a large quantity of scientific glassware, precursor chemicals and other chemicals. The precursor chemicals located included iodine and hypophosphorus acid and a small quantity of a powdered substance containing pseudoephedrine. Methylamphetamine weighing 24.5 grams was located in liquid in a wok on a bench adjacent to the laboratory 2.5 grams of pseudoephedrine was also located. The quantity of the substance containing iodine that was seized was 603.9 grams although the percentage of iodine in that substance was not known. The quantity of the substance containing hypophosphorus seized was 1889 millilitres and again the percentage of hypophosphorus acid was not known.
8 The fingerprints of both of you were located on items that were associated with the operation of the laboratory. You were both arrested by investigating police and made no comment to questions asked of you during the course of interviews with the investigating police, with the exception of you Scalera admitting that you were present on the night in question.
9 The prosecution accept that in your cases, your pleas of guilty should be characterised as early pleas and I have taken those pleas of guilty into account in your favour in mitigation of sentence.
10 Trafficking in illegal drugs of dependence is a serious offence and any sentence that I impose must be calculated to deter you and others from offending in the way that you have. Methylamphetamine is a dangerous illegal drug commonly associated with a range of criminal offending. It is often produced in clandestine laboratories such as the laboratory discovered in this case. As the sentencing authorities make clear, persons associated with the trafficking of illegal drugs of dependence ordinarily must expect a substantial term of imprisonment upon conviction. Each of you must also be punished for your offending.
11 I now turn to your personal circumstances -
12 Milorad Delic, you were born on 3 January 1961 and you are now aged 51 years. You have admitted two prior convictions from four previous court appearances, the most recent of which was in December 1991. Whilst you are not a first offender, your prior convictions are not significant for sentencing purposes in this case.
13 You were born in Croatia and arrived in Australia when you were nine years old. You left school after completing Year 10 at the age of 16 and commenced an apprenticeship as a plasterer and were thereafter in full employment. You married at the age of 20 and have three children aged 28, 22, and 20. Your marriage broke down in the late 1990s and you have suffered from some depression as a result of this.
14 I have received in evidence a number of character references on your behalf and I accept that those people who know you regard you as a person of good character. I have also heard evidence from Mr Neville Reale, a teacher with the Northern Region Catholic Education Department who has known you for some years through an association at the Rosebud Yacht Club. He also spoke highly of your character and stated that you were remorseful for your offending. The character witnesses all expressed their surprise at your association in a drug related offence and in the case of Mr Reale, he stated that he had never seen any evidence of drug use by you during your association with him. He stated that he sees you three to five times per week and that in his opinion, had you been using illegal drugs of dependence, he would have noticed it.
15 After being charged with this offence, you informed your general practitioner that you had been using amphetamines regularly since the age of 19 and using it every second day. I have received in evidence a report of Dr Robert Kruk, a consultant psychiatrist in relation to your amphetamine use, detailing medication you are currently taking and referring to your reported history to him of drug use. I have also received in evidence a report of Mr Simon Oliver a senior forensic clinician with Peninsula Health, also referring to your history of amphetamine use. Neither Mr Oliver nor Dr Kruk were called to give evidence during the course of the plea and there is no sworn evidence before the court in relation to your drug use. Furthermore as I have already observed, Mr Reale did not observe any signs of drug use by you. Accordingly whilst I accept that you may have used methylamphetamine from time to time, I do not accept that you were so addicted to that substance that you offended in this instance in order to obtain a quantity of it for your own personal use.
16 You have hepatitis C but it would appear that your health is otherwise unremarkable.
17 As I observed during the course of the plea hearing, it is not possible for me to accurately characterise your role in the offences before the court. What is clear however is that the offending took place at premises occupied by you and I accept that Hassan Taiba may also have been involved in the offending. Nevertheless it also is not possible to accurately characterise what his role was.
18 You are a mature man with a sound work and social history and you must have understood the seriousness of your offending. I accept that you are remorseful for your offending and that your prospects for rehabilitation may properly be described as good.
19 Maurizio Genatto Scalera, you were born on 27 August 1969 and you are aged 42 years. You have admitted four prior convictions or findings of guilt from four previous court appearances and whilst you are not a first offender, I do not regard your prior convictions as significant for sentencing purposes in this case.
20 You were born in Carlton and completed your education at Fawkner High School at the end of Year 10. Following leaving school, you worked as an apprentice carpenter after which you became qualified and worked for Podgor Constructions and Caelli Constructions.
21 You have three children and you are now divorced. Following the dissolution of your marriage, your family home was sold and you commenced to reside in a Red Lion Hotel in Kilmore where you met Hassan Taiba in 2008. Mr Taiba apparently owned those premises and you worked for him as a carpenter there. You also worked for Hassan Taiba in his property in Dromana and he there introduced you to your co-offender Milorad Delic.
22 I heard evidence from your partner Rebecca Dudley who stated that you are an infrequent user of amphetamine and that you are receiving counselling for depression. You have a young child with Ms Dudley who is currently pregnant and she described you as a good father. She stated that you were remorseful for your offending and that a delay in this matter coming before the court had caused you considerable stress. You are currently on unemployment benefits and your counsel stated that you have no assets to show for your 25 year work history and that you reside at a home in Rosebud which is owned by your mother.
23 I also accept that you are remorseful for your offending and that your prospects for rehabilitation are good. As with your co-offender Milorad Delic, it is not possible to accurately characterise your role in the offending before the court other than to say that when the premises were raided by investigating police, you were participating in the actual manufacture of methylamphetamine and as with your co-accused Delic, you must have understood the seriousness of your offending.
24 The prosecution accept as do your respective counsel that there is no reason for me to distinguish between the two of you in relation to the sentence that I propose to pass. In the result of the sentence of the court is as follows -
25 Milorad Delic, in relation to the charge of trafficking in a drug of dependence, namely methylamphetamine, you are convicted and sentenced to be imprisoned for two years and three months. In relation to the charge of possession of a drug of dependence, namely methylamphetamine, you are convicted and sentenced to be imprisoned for six months, that sentence will be served concurrently with the sentence in relation to the charge of trafficking.
26 This makes for a total effective sentence of two years and three months. I order that you serve 15 months imprisonment before becoming eligible for release on parole.
27 I declare that you have served 29 days by way of pre-sentence detention not including today.
28 But for your plea of guilty I would have imposed a term of imprisonment of three years and fixed a non-parole period of two years.
29 Maurizio Genatto Scalera, in relation to a charge of trafficking in a drug of dependence namely methylamphetamine, you are convicted and sentenced to be imprisoned for two years and three months. In relation to the charge of possession of a drug of dependence, namely methylamphetamine, you are convicted and sentenced to be imprisoned for six months. Such sentence is to be served concurrently with the sentence imposed on the trafficking charge.
30 This makes for a total effective term of imprisonment of two years and three months. I order that you serve 15 months imprisonment before becoming eligible for parole.
31 I declare that you have served 33 days pre-sentence detention not including today.
32 But for your plea of guilty I would have sentenced you to a term of imprisonment of three years and fixed a non-parole period of two years.
33 I have made the ancillary orders sought by the prosecution.
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