Director of Public Prosecutions v Donati
[2023] VCC 1017
•14 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-00143
Indictment No. N11959675
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Jorge DONATI |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 June 2023 |
| DATE OF SENTENCE: | 14 June 2023 |
| CASE MAY BE CITED AS: | DPP v Donati |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 1017 |
REASONS FOR SENTENCE
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Subject: Trafficking drug (heroin), possession drugs x 3; summary offences: Unlicenced driving, property suspected of being proceeds of crime, commit indictable offence on bail. 41 years of age, sizeable criminal history. On bail and CCO at time . 112 grams mixed weight heroin. Early plea; disadvantage: Bugmy, drug addiction ; Lacey
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper | Office of Public Prosecutions |
| For the Accused | Ms J. McGarvie | Sarah Pratt & Associates |
HIS HONOUR:
1Jorge Donati, you pleaded guilty earlier today to four charges laid on the indictment being a single charge of trafficking in heroin and three charges of possession of various drugs of dependence. In addition, you have pleaded guilty to three summary offences being charges of unlicenced driving, possession of property suspected on being the proceeds of crime and also a charge of committing an indictable offence whilst on bail. The maximum penalties are correctly set out in the prosecution agreed summary. I do not see any need to set them all out in my reasons. The Crown accept that the possession charges were not committed by you for any purpose related to trafficking in the given substance and hence they concede that the lower penalty provision would apply here. That ultimately though is a matter for me as to whether I am satisfied of those matters to the required standard. I am and so I will really say very little about the possession charges in my reasons from this point onwards.
2You were born in February 1982 and you are 41 years old. You have a lengthy criminal history.
3The matter was opened to me this morning by the prosecutor,
Mr Roper. He opened pursuant to a written summary dated 6 June 2023. Your counsel Ms McGarvie told me it was an agreed summary. There is no point in my restating all the facts as I will sentence in accordance with that agreed document.4It is pretty straightforward. You were intercepted by police in Preston in a vehicle in the early hours of 8 September 2022. You were obviously affected by drugs. The vehicle was searched and you were cooperative. Various drugs were found. The heroin is the major charge involving a sizeable enough amount of that drug, 112 grams by mixed weight and 83 grams pure. The other drugs were in much smaller quantities, hence the Crown concessions, which as I say, I act on.
5You were on bail at the time. You were also unlicensed to drive. Finally a large number of personal identification documents and cards were found in a purse, hence the property suspected of being the proceeds of crime charge.
6You made admissions in the police interview though not to trafficking.
7You have been in custody since your arrest.
In Mitigation
8Ms McGarvie had prepared an outline of plea submissions dated 9 June 2023. She filed what was a quite old report from Mr Cunningham but that was owing to the fact that apparently Legal Aid would not fund a fresh report given the recency of that Cunningham report. She placed before me a table of what she said were reasonably comparable cases. One of those was a case that I had passed sentence in.
9She also placed before me a breach report from Corrections spelling out efforts you had been taking to obtain treatment in the lead up to the offending as well as the various courses, certificates and urine screens that spoke of your efforts in custody since you were remanded last year.
10She made some submissions as to the relevant purposes of sentencing in this case and as to the objective seriousness of the offending, as well as to your prospects of rehabilitation into the future. She conducted an excellent plea on your behalf which is what I have come to expect from someone who is obviously always so well prepared as she is.
11In the course of the plea that was conducted on your behalf this morning, she relied chiefly upon the following matters in mitigation;
· The early guilty plea in the course of the pandemic;
· The presence of some remorse;
· Your disadvantaged early life (Bugmy[1]);
· Your drug addiction brought about at a young age by your disadvantaged background and the role that that would play in my sentencing task (Lacey[2])
[1] Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (‘Bugmy’)
[2] R v Lacey [2007] VSCA 196; 176 A Crim R 331 (‘Lacey’)
12She abandoned any reliance on the 5th and 6th limbs of Verdins[3] which had been mentioned in her written submissions and she abandoned those submissions recognising that there was simply no evidentiary basis for either limb based on the report placed before me. She also abandoned what was described as the Renzella[4] point which related to what was perceived to have been some previous ‘dead time’ served by you which had not been reckoned by way of any sort of pre-sentence detention at any stage. That was abandoned because the extract made it plain that in fact it had been taken into account.
[3] R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ('Verdins')
[4] R v Renzella [1997] 2 VR 88 (06 September 1996) (Winneke P, Charles and Callaway JJA); 88 A Crim R 65 (‘Renzella’)
13She conceded the inevitability of a prison term, one with a head sentence and non-parole period but she was arguing for a decent gap between your head sentence and your non-parole period.
Prosecution
14Mr Roper, who was prosecuting, had prepared some written submissions dealing with matters both in mitigation and aggravation and dealing with some general principles of sentencing, but winding up really at that same end destination; that is the prosecution calling for a head sentence and non-parole period. There was really very little by way of contest as between the parties.
Background
15Details of your background are now before me. I see no need to set out your background in detail in these my reasons. Now I did express some concern earlier today as to the fact that the only material before me as to your background is either your instructions to Ms McGarvie or your account to Dr Cunningham a couple of years back. There's no material from any other source. No material from your adoptive parents for instance as to what information they had as to your past background in Chile or the circumstances in which they came to adopt you and your sisters. I have considered whether I can act on your account in this respect and I have ultimately decided that I can. It is hardly surprising that there might be some differences in your account over the years or matters that you would have chosen deliberately to omit such as a history of past sexual abuse whilst you were in foster care. So I accept the personal family background that has been placed before me.
16By way then of only a brief snapshot, you are now 41 years of age. You were born in Chile. Your parents were both drug addicts and you were removed from your biological parents at a young age and placed into a foster home where there was significant ongoing abuse which I see no need to further detail in my reasons. I accept what is contained in the report of Dr Cunningham and in your counsel's written and oral submissions to me about the nature of that abuse. Your younger sisters went with you into foster care. At a later point you were removed from the foster home owing to the discovery of serious physical abuse and ultimately you and your sisters were adopted. You came to Australia as a 12-year-old and the adjustment to life in this country was quite difficult.
17You speak fondly of your adoptive parents, they are separated now, but the damage had been done to you many years before they came into your life . You could not speak English and you were reeling from the abuse sustained in foster care in Chile. In this country, you were expelled from school in Year 8. You worked as a hairdresser for a number of years and also in odd jobs in construction and labouring. You were unemployed for a significant period from 2010-2018. There has been some more recent employment that I have been told about it, including at a blind factory last year. Drugs have been massively problematic for you and from a very young age. You have used heroin since the age of 14 or 15, the precise commencement time is not critical. You have also used ice from 2016 or thereabouts. You have turned to dugs early on in life and though there have been periods of abstinence and also some periods of treatment, you relapsed in mid-2022. Even as you did, you were actually seeking assistance from Corrections as the breach report from Brooke Chadwick, marked as Exhibit 5, makes clear.
18I do not doubt that you started drug use at a quite young age and nor do I doubt that this involved something of an escape by you from some of the unresolved trauma that arisen in your life.
19You have a lengthy and relevant criminal history. You know that. You do not fall to be sentenced a second time for any of those past matters. You have been sentenced in the past and have served those sentences. However, your history before the courts is of course relevant to my task. I have to make judgments about your prospects of rehabilitation and your risk of reoffence. I have to consider the extent of the need to deter you from offending in the future and also the extent of the need to protect the community from you.
20You have multiple appearances for a range of offences of varying degrees of seriousness. I do not see the need to set them all out or conduct some audit of your criminal history. It speaks for itself. You have a prior conviction for trafficking in heroin. You have been given, as you know, many chances by the courts over the years, and you have not taken them, breaching virtually every community corrections order, as well as a suspended sentence which was extended at one point and breached again. You were on bail and a community corrections order at the time of the offending that I am dealing with.
21Now I do have that breach report which I mentioned and though there are descriptions of your performance as sporadic, it actually is not the case that you were entirely dismissive of the order or treating it as a joke. You obviously were not. The report is not a disaster at all, even though of course it involved a breach. You engaged openly with the worker and you attended a large number of appointments. You missed a number as well, of course, and I say it is actually quite instructive that you were seeking out treatment on 31 August of last year through your Corrections officer. It is a positive that you were making those noises as far as I am concerned. It demonstrates that there is a level of insight and a willingness to try to deal with your addiction. This was in the lead‑in to the offending I am dealing with.
22In custody you are working and you are also doing such courses and programs as are available to you, as Exhibit 4, a bundle of course completion documents and drug screens makes clear. Of course, it is a positive that you are doing well in custody. I am told that you have a partner who has been unwell and her health condition worries you but there really is no material before me as to the nature of that condition. It does not sound too good if she is being treated at Peter MacCallum, but as I understand it, things are being explored. She is supportive of you but not of your addiction to drugs it would seem. She is not a user herself. I am told also that you have family support.
23I turn then to some of the other matters that have been raised on your behalf in mitigation.
Guilty plea
24You have pleaded guilty at the earliest opportunity. You have taken early responsibility for your crimes. By your plea, you have admitted your guilt. You also made some admissions to the police and you were cooperative. Indeed, in the course of that interview, you were spelling out the way in which drug use had been part of your protective stance over the years. You were cooperative with the police and you have in these various ways facilitated the course of justice. The community has been saved the time, cost and effort of a contested committal in the Magistrates Court, or a trial up in this court. So I take into account your early guilty plea. It must be adequately rewarded and there must be a sizeable reduction in sentence owing to that fact.
25There is also the heightened benefit owing to the plea occurring in the course of the backlog of cases which has mounted up during the global pandemic. The many reasons for that heightened benefit are described in the case of Worboyes[5] and many cases following on from that decision. Well, your case was never part of the backlog of cases. It swiftly settled. You must be adequately rewarded.
[5] Worboyes v The Queen [2021] VSCA 169; 96 MVR 344
Remorse
26You have pleaded guilty and you have done that at an early stage. A guilty plea is often indicative of some remorse. I do find the existence of some remorse here. I have no sense at all that you are revelling in your crimes or in any way revelling in your addiction to drugs. It is quite the opposite actually, so I take into account in mitigation your remorse.
Evidence of drug addiction
27Your counsel relied upon a combination of factors being your drug addiction and drug use, the stage at which you became addicted, your disadvantaged background and the relationship between these matters. Of course, I am obliged to take into account your background and I do, insofar as the law permits me to. After all I am sentencing you. When I consider your early background, there is obviously nothing to envy in it. There was clearly very significant disadvantage.
28You grew up without parents. You were subjected to some pretty horrible abuse in foster care. Your life ran off the rails very early on and that was not a matter of you making any choice. You had no say in any of this. You were a child. It was just the hand dealt to you and frankly, it was a very poor hand, as you know. These things occurred and these things when they do occur, scar an individual deeply, as they did to you.
29When you got to this country, the damage had been done. You left school at an alarmingly young age. It was hardly surprising that you struggled at school or that you started to abuse drugs at such a young age. You were in no way well prepared for movement into adulthood. Drugs became part of your life it would seem and committing crime to obtain them has also been part of your life, in some of those times when you have used them.
30Now I do not doubt that you were addicted to heroin at the time and many years previously. These offences were undoubtedly committed by a person who was addicted to drugs and in fact who was also under the effects of drugs. Normally that would be of no mitigatory value at all and would provide only some explanation or context. Here, your drug use commenced at a very young age and in the setting that I have described, and to that extent, I believe you can be distinguished from an older and better equipped offender who has made a ‘free and rational choice’ to use drugs. The case law relied upon by your counsel suggests that an older person has an understanding as to the predictable consequences of that choice to use drugs. That sort of person, that is, a mature person is said to be making a free and informed choice. I raised in discussions the fact that I have often wondered about the correctness of that view. The extent to which even a mature adult offender has any real understanding of how low he or she may sink in the future, when he or she first uses drugs is in my view highly debateable.
31In any event, you were very young when you first used drugs and though of course no one forced them into your body, you chose to do that yourself, I doubt that you could have had any real sense of where this would lead down the track. No doubt it was a decision to some extent a consequence of the trauma and abuse you had suffered already to that point in Chile. So I believe I can in fact, in the unusual circumstances of this case, give some weight to the McKee Brooks[6] or Lacey-type submission that has been made on your behalf. See paragraph 11(iv) of the outline. There can be some modest reduction in your culpability and some moderation of sentence. Of course, a court would wish that the cycle of offending can be broken but the nature of your offending and lack of response to many past orders leaves me with no alternative disposition than the one urged upon me by your counsel. I have no option but to imprison you here. It then is a matter of the weight to give to this particular matter in mitigation.
[6] R v McKee [2003] VSCA 16; 138 A Crim R 88 (‘McKee Brookes’)
32It really cannot dominate my task. You have a choice now as an adult, as to whether you will continue to use drugs and to commit crime. No one is forcing you to do either. The courts have spent some effort trying to lead you away from offending and have imposed treatment conditions to go to the very heart of what they believe to be the cause, on very many occasions. You breached those orders. You know that you offend in part to obtain drugs and have had a level of insight and understanding that the addiction needs to be addressed by you. A drug addiction cannot be a licence to offend.
33Further, your offending here was not at some low level. You were not possessing for sale some small quantity of heroin. You were not trafficking some tiny amount out on Victoria Street and in that way covering your own drug use. That is not the nature of this crime at all. I do accept that you were addicted from a young age. I do accept you were drug affected on the day. I am not satisfied on balance that you were trafficking primarily to support your own addiction or that this was street level trafficking. You possessed for sale about four ounces of heroin by mixed weight. Your account to the police as to your reason for possessing the heroin was of course not truthful. You denied any intention to traffic. Your counsel though relied upon some aspects of that false account as being truthful, namely your purchase of the drug for $7000. $7000 savings I was told that amount saved up from less than a year of work is pretty good going on any view of it. No material was placed before me as to whence that money was withdrawn or how you could possibly have saved such a sum. I made it clear, as I thought I had to, to your counsel that I had reservations about your instructions. She chose not to call you on the plea which I suspect was a wise step. You told the police that you were buying that quantity every month. The possession of that quantity of drugs does not persuade me that this was all being done out of need and that it did not involve an aspect of greed as well. No doubt you would have used some of the drugs yourself but it is obvious enough that you were intent upon making a decent profit in this exercise, of that I have no doubt at all. I do not believe this factor is as powerful as Ms McGarvie says it ought be but I still do apply these Lacey principles to my task. They have a role to play and they bring about some reduction and moderation.
34I have already in dealing with this Lacey or McKee Brookes point, provided my view as to the success of the Bugmy/Hermann[7] submission that was made before me. I am going back to your disadvantaged background. You had no say over the dreadful early phase of your life. It was a chaotic, abusive and dysfunctional upbringing with really very few decent role models and no one to protect you. You were exposed to much you should not have been exposed to and it has left a deep scar.
[7] DPP v Herrmann [2021] VSCA 160 (“Hermann”)
35These things all have a role to play in the faltering trajectory of your life and in your resorting to drugs at an early age. I do take into account what I judge to be a significantly disadvantaged background pursuant to cases such as Bugmy and Herrmann. An offender's circumstances and their experience during their childhood and their formative years must be considered in the sentencing process. That is because it is well recognised that the effect of social disadvantage does not diminish with time. A background of significant disadvantage is likely to have profound and lasting consequences, as it no doubt has had in your life. I accept the submissions made on this point in that respect. I give full weight to your background in the way that that phrase is employed in those cases to which I have referred. There is obviously some reduction in your moral culpability arising here. However, your background is not going to alter overnight. It is your background, it remains with you and it must also be taken into account when I make judgements as to your future prospects and risk of re-offence, in the same way as I must take into account your long-term addiction to drugs.
The report of Dr Cunningahm
36I have mentioned the report of Dr Cunningham and will not say much more about it. It is not relied upon as enlivening any of the principles from the case of Verdins. Limbs 5 and 6 do not have any real evidentiary foundation based on that report from 2021 and in fact you are actually doing pretty well in custody at the moment. The report is still useful in informing me as to your background and I have used it as I hope I have made plain, in making judgements, favourable judgements as to the weight to give to Bugmy and Lacey in the submissions dealing with those cases. Further, you do have complex Post Traumatic Stress Disorder or did back in 2021 and there is no reason for me to doubt that you still do. I know it is not open for me to find any increased burden such as to enliven limbs 5 or 6 of Verdins. I can still take it into account in a general way and I do.
37Your counsel specifically informed the Court that no increased burden based on the prison authorities’ response to COVID 19 was relied upon here. No doubt that was owing to eh relaxation of restrictions, the fact that you have been held only since September of last year and the fact that you are doing well in custody. I mentioned a moment ago, that you are worried about your partner and I do not ignore that fact but it is not a major matter to take into account and nor is there any real detail as to your partner's actual health predicament.
Rehabilitation
38I turn then to your prospects of rehabilitation. You have a lengthy criminal history. You have been given many chances by the courts over the years and have not taken them. You have breached every community corrections order or suspended sentence that has been imposed. You have been sent to prison and that has not impeded your offending upon your ultimate release. You were released from prison in July 2021 onto a community corrections order with various conditions, including treatment conditions. You breached that order by offending. You also were on bail at the time of the offending that I am dealing with.
39You are not some silly teenager or person of immature years. You are 41 years of age. All those things might ordinarily point to a pretty grim outlook but I do not sense it is as grim as that actually, in the setting of this case. For though you breached that community corrections order, as I say, the report is not all negative, not by a long shot. You took efforts along the way, you obtained treatment and counselling and notably you were expressing interest in detoxification and residential rehabilitation on 31 August. So that is before this offending. That is before the offending for which you were admitted to bail as well, so you obviously could see that the wheels were falling off and that you were relapsing and needed assistance. You referred yourself back to Regen Group and you were on a waitlist. You were also hoping to have this matter referred to the Drug Court but the list was full. So none of that suggests to me that you are a hopeless case at all actually. In fact it spells out that there is some insight and some real desire to actually deal with your addiction issues and some of the past trauma that underpins that addiction. It is true that a long-term addiction to drugs casts a shadow over a person's future rehabilitation as it surely does here. There is some family support and I believe there is some desire to move into a different phase of your life. That is important. I sense you wish to change, and I do not say it is beyond you.
40No doubt the time you have already spent in prison, and the sentence which I will soon pronounce will serve to deter you to a degree.
41I accept that I can only be quite guarded here, but I am actually satisfied that you have some realistic prospects of rehabilitation. You will have to work hard. Those prospects of rehabilitation will be conditional upon your abstinence from drugs of dependence in the future. I do hope you can alter the trajectory of your life. I sense that you are ripe for change, and if not now, well when? I mean you are 41 years of age, and your life will pass you by. You surely realise that if you do not desist from drug use in the future, you will have minimal prospects of rehabilitation at best, and literally no prospect of living a useful or meaningful life.
The Offences
42I am not going to say much more about the offending. I have already summarised it broadly and I will sentence according to the agreed statement of facts. The drug trafficking charge is inherently serious as Ms McGarvie concedes. It has a 15-year maximum. This is a quantitative-based regime. Quantity is always of some real importance. Often the only thing differentiating one case from another is the quantity of drug possessed or trafficked. You possessed for sale, as I indicated, 112 grams mixed weight. That had 83 grams or pure heroin which is over the 50 gram pure commercial quantity threshold. Now I am not dealing with you for commercial quantity trafficking I make that clear, but what is obvious is that this is a sizeable amount to be dealt with in what is described as a ‘simpliciter’ charge. Again, that is conceded by your counsel. The commercial quantity mixed weight threshold is 250 grams. The trafficable quantity is 3 grams. This was possession for sale on the day of arrest. It being possession for sale on the day of arrest is not a mitigatory matter. It would be aggravating if it was a between dates offence but it is not. It is hard for me to make any real judgements about where you lay in any hierarchy or if there was any hierarchy. Your counsel says there was none. If that be so, it was your heroin and you were going to sell it yourself, but as is usually the position I am left in doubt about many of these factors as I certainly do not accept your account as to how you purchased the drug. It really is quite impossible for me to know what relationship, if any, you had to others or even if those others existed. I have already spoken though of some reduction in culpability on a Lacey and Bugmy basis. I do not however accept to the requisite degree, that this offending was all connected to need. It was not.
43I will scarcely mention the other drugs as they were possessed and I am satisfied that that possession was for personal use. They are the least of your problems and the possession of the property suspected of being stolen and the unlicensed driving charges are not matters of any particular seriousness. I do not further describe them. You were on bail at the time, of course, and that is a feature of aggravation. I also have the provisions of s16(3C) to deal with.
Purposes
44I have to consider a number of purposes of sentencing. I must pay regard to your prospects of rehabilitation. I have already indicated my view that you have some realistic prospects of rehabilitation.
45I must punish you for your crimes. I have got to do that justly and proportionately, and that is an important purpose for this sort of crime.
46I must also denounce your conduct.
47I must give weight to specific deterrence. That relates to the need to deter or the need to dissuade you from offending in the future. Well, that is of obvious importance in this case. So too is community protection. You are, after all, a repeat offender.
48General deterrence is also an important purpose of sentencing in this sort of case. I have to try to deter others from doing what you have done. What you were doing was to some extent taking a calculated risk for some level of financial reward.
49Drug trafficking is a pernicious crime. It is said to attack the very fabric of our society (see the case of Zarghami[8]).
[8] Zarghami v R [2020] VSCA 74
50The courts have an obvious role in sending a message in an endeavour to cause like-minded potential offenders to rethink their involvement in this serious sort of crime. I am speaking now of the trafficking obviously. The sentences imposed by the courts must cause other like-minded potential offenders to pause and to reflect and to consider the potential ramifications of being caught if they choose to commit this serious style of offence.
51I must have regard to the maximum penalties. I also must pay regard to current sentencing practices. That is not a single controlling feature, it never has been. I have looked at the relevant Sentencing Advisory Council snapshot for the crime of trafficking, as well as the updated online sentencing statistics. I have looked at some of the cases set out in the Judicial College of Victoria Sentencing Manual.
52I have also looked at the selection of cases provided by Ms McGarvie in the comparable table selection. She conceded though, even as she placed that before me and was going to some of those examples, that there were many differences and there are. One of the cases she was taking me to was a case where I was the Judge passing the sentence, and there were differences all over the shop, including the fact that that person I had to send back to prison after a very significant period of ongoing rehabilitation on bail. So there are differences all over the place in terms of the nature of the offence, the nature of the offender, the matters in aggravation, the matters in mitigation. So those matters were only of very limited assistance to me.
53I have to sentence you for your crimes and that is not a process of mathematics or statistical analysis as to what has occurred in the past. No amount of looking at other cases and no amount of looking at statistics can ever provide the answer to my sentencing discretion. That is what it is - a discretion exercised in your case, taking into account the matters in mitigation and aggravation in your case, in this case.
Totality
54I do have regard to the principle of totality of sentence. I have a variety of offences of varying levels of seriousness, but obviously the most serious matter is the trafficking charge. That much is clear. The other offences are far less serious.
55I have engaged in a last look at the effect of the sentences to satisfy myself that the overall effect is commensurate with your overall criminality.
56Prison is a disposition of last resort. It always has been and hopefully always will be. It is conceded that is the only option open to this court in this case.
Ancillary Orders
57There is a disposal order sought here. I am satisfied that the preconditions for the making of that order under s78 are made out. I order pursuant to that provision the forfeiture to the State of the property referred to in the schedule and I order that it be handled and managed in the way contemplated by the signed order. So I have pronounced that order in abbreviated form.
Sentence
58I will now pass sentence upon you Mr Donati. If you could stand please.
59On Charge 1, that is the most serious obviously, it is the charge of trafficking in a drug of dependence, namely heroin, I convict and sentence you to 27 months imprisonment. That is the base sentence.
60On Charge 2 and Charge 4, that is possession of methylamphetamine (Charge 2) and possession of the 1-4 Butanediol on (Charge 4) I believe an aggregate sentence is both open to me and appropriate in the circumstances. I convict and sentence you to an aggregate period of seven days imprisonment for those two charges.
61On Charge 3, the charge of possession of a drug of dependence being cannabis, given the quantity of that cannabis, it is not even an offence amenable to a term of imprisonment. On that charge, I convict and fine you the sum of $200. That deals with the indictment Charges. The base sentence is therefore the two years, three months or 27 months imposed on the trafficking charge.
62On summary charge of unlicensed driving I convict and sentence you to seven days imprisonment.
63On the summary offence (Charge 9) of dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to two months' imprisonment. That is summary offence nine I should say.
64On the summary offence (Charge 10) of committing an indictable offence on bail, I convict and sentence you to seven days' imprisonment.
Base
65As I have said, the base sentence then is the 27 months imposed on the trafficking charge. I have considered whether I should be cumulating any of the individual sentences or for that matter, the aggregate matter. I have ultimately decided to order no cumulation in this case, so all those sentences will be served concurrently upon the base sentence.
66It follows then that I am to this extent otherwise ordering concurrency under the provisions of s16(3C).
Total Effective Sentence
67The total effective sentence therefore as I am sure you understand, is 27 months.
Non-Parole Period
68I have to fix a non-parole period, given the dimensions of that sentence. I am prohibited from speculating about whether you will be released on parole. That will be in the hands of the Adult Parole Board, but I do accept there should be a decent gap between the head sentence and the non-parole period in the circumstances of this case.
69I fix a period of 14 months during which you will not be eligible for release on parole.
Pre-Sentence Detention
70You have served a total of 279 days by way of pre-sentence detention and that s18 declaration is entered into the records of the court.
6AAA
71I have told you I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury I would have sent you to prison for four years. I would have fixed a non-parole period of two and a half years in that setting, and that declaration likewise is to be entered into the records of the court. It is a declaration made under s6AAA of the Sentencing Act.
72I have not made it plain, but I see no need to make any licence orders in the circumstances of this case. Grab a seat. I will just see if there is anything else that I need to deal with. Any other matters I need to deal with?
73MR ROPER: No, Your Honour.
74MS MCGARVIE: No, Your Honour.
75HIS HONOUR. No? All right. Well that completes the matter. I will get the matter back from VGRS in due course, but my practice is to revise on the day that I get these matters sent back and once I have done that, I will make the revised reasons available to the parties, but you will presumably see your client downstairs will you?
76MS McGARVIE: Yes, Your Honour.
77HIS HONOUR: Well that completes the matter then Mr Donati, so Ms McGarvie will come down and see you downstairs and explain what has occurred here today and your rights in relation to the sentence that I have imposed. Okay?
78OFFENDER: All right.
79HIS HONOUR: So Mr Donati can be removed now then, thank you.
80MR ROPER: Thank Your Honour.
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