Director of Public Prosecutions v Fantig
[2019] VCC 790
•31 May 2019
| IN THE COUNTY COURT OF VICTORIA | Revised |
GENERAL LIST
CR 18-02422
Indictment No. J11105521.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADRIAN FANTIG |
---
| JUDGE: | HER HONOUR JUDGE CONDON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 May 2019 |
| DATE OF SENTENCE: | 31 May 2019 |
| CASE MAY BE CITED AS: | DPP v Fantig |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 790 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – traffick in a drug of dependence - prohibited person
possess firearm – plea of guilty
Cases Cited: Berichon v R; Houssein v R (2013) 40 VR 490
Sentence: Total effective sentence of four years and eight months’ imprisonment,
with a non-parole period of three years
Section 6AAA declaration: six years’ imprisonment with a non-parole
period of four years---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A J Buckland | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J P Siggins | Emma Turnbull Lawyers |
HER HONOUR:
1Adrian Fantig, you have pleaded guilty before me to three charges of trafficking in a drug of dependence, and six charges of being a prohibited person possessing a firearm. At the time of the commission of these offences, you were 38 years old. You are now 40 years of age.
2You also agreed to have the summary charge of commit an indictable offence whilst on bail, dealt with by me.
3Exhibit A on the plea in mitigation, was the Summary of Prosecution Opening. I incorporate that document into my Reasons for Sentence. However, I will briefly summarise the offending that has brought you before the Court.
4Between November 2017 and the time of your arrest in May 2018, you were engaged in an illegal business enterprise of selling drugs of dependence and firearms. You talked about these business activities extensively on your mobile phone at a time when your phone activity was legally monitored and recorded by Victoria Police.
5Turning firstly to the activity encompassed by Charge 1, being traffick methamphetamine. In November 2017, Victoria Police began recording your mobile phone. In the course of those recordings, you discussed and described travelling to Melbourne from Cobram, where you were living at the time, to collect methamphetamine and bring it back to regional Victoria.
6You also discussed these transactions over the phone. During these conversations, you would refer to methamphetamine in code, commonly calling it “ice” or “shard”, or referring to its sold weights and quantities. The period encompassed by Charge 1, is from 1 December 2017 to 17 March 2018, the same period as reflected in Charges 2 and 3 on the Indictment.
7Turning now to the conduct encompassed by Charge 2, being a charge of trafficking in 1,4-Butanediol. You purchased the 1,4-Butanediol from sellers in Melbourne and divided it into smaller quantities and placed it into vanilla essence bottles. You discussed the sale of the 1,4-Butanediol over the phone and referred to it by the codename as either “drink” or “juice”.
8Turning now to Charge 3 on the Indictment, being trafficking in a drug of dependence, namely cannabis. You obtained quantities of cannabis from unknown sources and sold it to buyers in regional Victoria. The prosecution alleged that you obtained a profit from these transactions. You referred to the purchase and sale of cannabis over the phone and referred to it as “green”, “bud” or “grass”. You also referred to cannabis using weight terminology, such as “gram”, “quart”, “ounce” and “pound”.
9Turning now to the conduct encompassed by Charges 4 to 9 on the Indictment, being prohibited person possess firearm. On 8 December 2017, you were the named respondent in a family violence intervention order. The order in question was imposed for a 12-month period, expiring on 7 December 2018. Therefore, as at February 2018, you were deemed to be a prohibited person.
10Sometime after 9 February 2018, you came into possession of the following firearms and ammunition that were stolen in a burglary on 9 February 2018, from a rural property in Caniambo:
· an Aya-branded 12-gauge shotgun (Charge 4);
· an SKB-branded 12-gauge shotgun (Charge 5);
· a Stoeger-branded 0.410-gauge shotgun (Charge 6);
· a Benelli-branded 12-gauge shotgun (Charge 7);
· a Remington 0.222 calibre centre fire rifle (Charge 8);
· a Tikka-branded 0.300 calibre centre fire rifle (Charge 9); and
· seven slabs of shotgun shells, totalling approximately 1,750 shotgun shells in total. I note there is no charge relating to the ammunition.
11You sold the stolen firearms to various people and talked to individuals on your mobile phone about selling the stolen firearms between 14 February and 18 February 2018. These conversations were recorded by police.
12Of the firearms listed above, only the SKB-branded 12-gauge shotgun (Charge 5) has been recovered to date and as I have already observed, you were a prohibited person for the purposes of s5(1) of the Firearms Act 1996 (Vic).
13On 30 April 2018 you were arrested. You declined to answer questions, as is your right, when interviewed by Victoria Police. You were remanded in custody on that day and have remained so ever since.
14As to the procedural history of this matter, a contested committal was held in November 2018. On 29 March of this year you, through your legal representatives, offered to plead guilty to the charges on Indictment before me. On 26 April 2019, that plea offer was accepted, and the matter resolved.
15I find that your plea of guilty is consistent with an acknowledgement of responsibility for your offending and with a desire to facilitate the administration of justice.
16Before me, you admitted your prior criminal history. For the sentencing exercise today, there are some relevant matters.
17On 1 May 2009, you were convicted at Shepparton Magistrates' Court for the offences of: possess GHB; drive under the influence of drugs; and use drug of dependence. On that day, you were fined an aggregate amount of $750.00.
18Three years prior to that you appeared, also at the Shepparton Magistrates' Court, on 14 February 2006, for the offences of possess amphetamine; possess ecstasy; use drug of dependence; and use amphetamines. I note however, on that day, no conviction was recorded and you were fined $850.00.
19Insofar as Charges 1 to 3 are concerned, your defence counsel realistically conceded that the telephone intercept material revealed that you were in the business of trafficking drugs. Whilst a small enterprise, it was one in which you were the principal operator. The telephone intercept material reveals it to be a persistent and ongoing enterprise.
20The prosecution's submission, in respect of Charges 1 through to 9, was that a significant term of imprisonment was warranted in your case. The prosecution argued that your moral culpability, insofar as Charges 1 to 3 are concerned, was particularly high, given that in the operation you conducted, you were the principal in your own business.
21The prosecution also relied upon the fact that three different drugs of dependence were involved, being methamphetamine, 1,4-Butanediol and cannabis, as reflective of the scale of your trafficking operation. However, the prosecution also conceded that each charge of trafficking simplicter, reflected its inability to establish any particular amounts that were involved in the transactions throughout the charged period.
22There can be no doubt, given the prevalence and destructive force of drugs in our society, that Charges 1 to 3 warrant condign punishment. In my view, Charges 4 to 9 also constitute serious offending. Direction as to the proper assessment of the gravity of this kind of offending can be found in the Court of Appeal decision of Berichon v The Queen[1], in which His Honour Justice Redlich stated this:
'The conduct of a prohibited person in possession of an unregistered firearm may be placed in one of two broad categories of seriousness. Those categories have been discussed in R v Graham and Armistead v The Queen. The first category of cases are those where the conclusion is not open that the possession of the firearm is associated with some ongoing criminal activity. Sentences of a low order of imprisonment are usually appropriate unless the previous criminal history of the offender warrants a more substantial sentence, proportionate to the gravity of the offence. The second category of cases are those where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose, more severe sentences are then usually in order. …'.[2]
[1]Berichon v R; Houssein v R (2013) 40 VR 490
[2] Ibid at [26]
23In your case, the prosecution contention was that your offending sat in the first category of cases. The sale of the firearms is clearly discrete and separate offending from the activity constituted by Charges 1 to 3. However, it is still offending that in my view, warrants the imposition of a sentence of imprisonment, bearing in mind the significance of general deterrence in the context of firearms offences.
24Your counsel made the submission that in relation to Charges 4 to 9, you were the “go-between” for reward for a single theft of the firearms. Furthermore, an argument was advanced that the weapons were of a kind commonly found on rural properties and not modified to assist in the commission of criminal offences. It was estimated that you had sold three weapons for the sum of $500 and the money was used to purchase the drugs.
25As to the overall offending, your counsel submitted that your foray into this serious criminal activity occurred against the backdrop of your marriage breakdown and separation from your young daughter. You were experiencing profound loss, as a consequence. Your counsel described your involvement in this offending, as reflective of the fact that you had “lost your way” and made some very bad decisions.
26In 2016, your marriage indeed broke down. You then began living with friends in the Cobram area and also experienced problems at work. I accept that you have had an otherwise very good work history. You were employed for 20 years at the Murray Goulburn Cheese Company in Cobram.
27In that vein, part of Exhibit 2 on the plea was a character reference from Mr Anthony Ventre. He states that you had full employment with the same company for over 20 years, prior to these events. Mr Venture described you as a loving father to your daughter and that he believes that this will help you upon your release, to stay focused on getting your life back on track. He emphasises that prior to your marriage breakdown, you held a steady job and were a devoted father to your family.
28Ms Olivia Fantig also provided a character reference on your behalf. She is your sister-in-law and has known you for seven years. Ms Fantig also points out that you have been hard-working, maintaining the same job for almost 20 years. She also describes you as a devoted father to your daughter. Insofar as your current legal predicament is concerned, she describes it as “completely out of character” for you.
29Indeed, it does appear that prior to your involvement in this serious criminal activity, you had lived what can be described as a relatively normal life. The breakdown of your marriage of 14 years and subsequent acrimonious property separation proceedings has clearly had a profound affect upon you.
30The gap between your criminal conviction in 2009 and these matters, is not an insignificant one. Ten years elapsed before you had any further involvement in the criminal justice system. Furthermore, the prior matters that I have previously referred to, relate to your issues surrounding personal use of drugs of dependence, as opposed to seeking to exploit unlawful profit-making opportunities.
31Your counsel submitted that you have excellent prospects for rehabilitation. In support of that contention was the fact that you have ceased drug use. Exhibit 3 on the plea, revealed three random drug tests. The first of these was conducted in May of last year, whilst you were at Fulham Prison. The second was in November of last year, whilst you were at the Metropolitan Remand Centre. And the third and most recent, being 3 May this year, was at Port Phillip Prison. Each of those returned a negative result.
32It was also contended that you have insight into the seriousness of your offending and the consequences of your acts. I note, here, that in relation to this submission, there was no objective evidence before me in support of that contention. I do, however, take into account the fact that you have pleaded guilty as evidencing an acknowledgement of the consequences of your offending.
33I also note that in 2009, you underwent a mental health plan consequent upon your appearance at the Shepparton Magistrates' Court for possession and use of drugs. Apparently, you attended upon a psychiatrist by the name of David Jones. I was not provided with any letter or report from Mr Jones as to the outcome of your attendance upon him back in 2009.
34As was pointed out by me to your counsel in the plea in mitigation, this is not offending that could be said to be driven in any way by your history of drug addiction. Indeed, as it was realistically and frankly conceded, the activity forming the subject of Charges 1 to 3, reflects your persistent and conscious decision to involve yourself in the business of drug trafficking. In those circumstances, the question of your drug use appears to me, to be a marginal consideration when assessing your prospects for rehabilitation.
35However, it does seem to me that you have in your favour the following factors:
·this is the first period of time that you have spent in custody and it appears to have had a salutary effect upon you;
·you have no history of violent offending;
·you have an otherwise admirable work history; and,
·the offending occurred against the background of the disintegration of what was otherwise a stable existence.
36In my view, given your limited criminal history and your age, you do have good prospects for rehabilitation.
37The basic purposes for which a court may impose a sentence are: punishment; deterrence, both specific and general; rehabilitation; denunciation; and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim, if any.
38Could you please stand, Mr Fantig?
39In relation to Charge 1, being a charge of trafficking in a drug of dependence namely methamphetamine, I convict and sentence you to a period of imprisonment of three (3) years.
40In relation to Charge 2, being trafficking in a drug of dependence namely
1,4-Butanediol, I convict and sentence you to a period of imprisonment of three (3) years.41In relation to Charge 3, being a charge of trafficking in a drug of dependence namely cannabis-L, I convict and sentence you to a period of imprisonment of three (3) years.
42In relation to Charge 4, being a charge of prohibited person possess a firearm, I convict and sentence you to a period of imprisonment of twelve (12) months.
43In relation to Charge 5, being a charge of prohibited person possess a firearm, I convict and sentence you to a period of imprisonment of twelve (12) months.
44In relation to Charge 6, being a charge of prohibited person possess a firearm, I convict and sentence you to a period of imprisonment of twelve (12) months.
45In relation to Charge 7, being a charge of prohibited person possess a firearm, I convict and sentence you to a period of imprisonment of twelve (12) months.
46In relation to Charge 8, being a charge of prohibited person possess a firearm, I convict and sentence you to a period of imprisonment of twelve (12) months.
47In relation to Charge 9, being a charge of prohibited person possess a firearm, I convict and sentence you to a period of imprisonment of twelve (12) months.
48I make the following orders for cumulation. I order that four (4) months of each of the sentences imposed upon Charges 4, 5, 6, 7 and 8 be served cumulatively upon the sentence imposed upon Charge 1 and one another. As already observed, the conduct constituted by Charges 4 to 8, constitutes distinct and separate offending, thus warranting here a measure of cumulation. In arriving at the overall sentence, I am of course mindful of the application of the totality principle.
49In relation to Charge 8, being a summary charge of commit an indictable offence whilst on bail, I convict and sentence you to a period of imprisonment of thirty (30) days.
50That makes for a total effective sentence of four (4) years and eight (8) months. I declare a period of three (3) years before you become eligible for parole and order that such declaration be made in the Order of the Court.
51Pursuant to s18(4) of the Sentencing Act 1991 (Vic), I declare a period of 395 days as pre-sentence detention.
52Pursuant to s6AAA of the Sentencing Act, were it not for your plea of guilty, I would have imposed a sentence of six (6) years with a non-parole period of four (4) years.
53You may be seated, Mr Fantig.
54Mr Buckland, was there a disposal order in relation to this matter? I grant it, if there was. I was not sure if it was in relation to this matter, or the co- accused's matters?
55MR BUCKLAND: It is peripheral, but it is in relation to this matter, because as a result of this matter, they did a search warrant on that particular address and they took that.
56HER HONOUR: All right. Well, the order is granted. Yes.
57MR BUCKLAND: Thank you.
58HER HONOUR: Yes, very well.
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