Director of Public Prosecutions v Farrugia

[2016] VCC 704

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00283

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAUN FARRUGIA

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 May 2016
CASE MAY BE CITED AS:	DPP v Farrugia
MEDIUM NEUTRAL CITATION:	[2016] VCC 704

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. N. Resstel-Pires	Office of Public Prosecutions
For the Accused	Ms. L. Ristivojevic

HER HONOUR:

1Shaun Farrugia, you have pleaded guilty to the following offences.  Cultivation of a narcotic plant, handling stolen goods, possession of a drug of dependence, methyl-amphetamine, possession of a prescribed pre-cursor chemical, being a prohibited person in possession of a firearm and theft.  You have also consented to me dealing with the following related summary matter dealing with property suspected of being the proceeds of crime.

2In addition, this offending breached a suspended sentence that I imposed on you on 2 April 2014.  That was a sentence imposed on appeal for charges of being a non-prohibited person being in possession of an unlicensed Category A long arm and possession of ammunition without a licence.  At that time, I imposed a three-month term of imprisonment wholly suspended for two years, and as previously indicated, the current matters were committed by you during the operational period.  The maximum penalties for all the matters are as follows: 

3Cultivation of a narcotic plant, 15 years;

4Handling stolen goods, 15 years;

5Possession of a drug of dependence, 1 year or 30 penalty units;

6Possession of a prescribed pre-cursor chemical, 60 penalty units or five years imprisonment or both;

7Prohibited person possessing a firearm, 1200 penalty units or 10 years imprisonment;

8Theft, 10 years imprisonment, and where, as in this incidence, it involves a motor car, a period of disqualification;

9Dealing with the proceeds suspected of being the proceeds of crime, two years imprisonment;

10During March 2015, you were residing at a property which you own, situated at 5, Byron Place, Taylors Lakes.  As a consequence of an unrelated investigation, police attended at this house on 17 March.  At that time, various stolen items and drugs were located.  Additionally, CCTV footage depicting your movements in and out of the house over a period of time, were seized, which depicted some of your criminal activity. 

11At about 2 am on Tuesday 17 March 2015 you co-offender Omar Chaouk accidentally shot himself in the groin while sitting in a Mercedes outside a property in Caroline Springs.  The CCTV footage from your property depicts Chaouk arriving at your house shortly after the shooting, you walking out and speaking to Chaouk briefly, and then going back inside with the firearm.  You then drove Chaouk in the Mercedes to Sunshine Hospital, but Chaouk still had the keyless entry device for the ignition with him so the car cut-out during your drive back to your place.  You abandoned the Mercedes in Taylors Lakes.  Your fingerprints were located on the Mercedes.

12Police attended at the hospital and located a projectile with the appearance of a .22 calibre bullet on the floor beside Chaouk.  At about 3 pm that afternoon, police executed the search warrant at your house.  Upon the arrival of police, you ran into the backyard of the property and tried to jump over the fence.  You dropped a bum-bag over the rear fence and went back inside.  Also inside were Paul Katonia and Frank Asposito. 

13You were arrested and searched.  Two zip-lock bags each containing one gram of methyl-amphetamine were located in the front pocket of your jeans.  That constitutes Charge 3, possession drug of dependence.  Given this amount and where it was located, I am satisfied it was not for the purposes of trafficking. 

14A search was then conducted of the property.  A hydroponic set-up was located in the back room of the house, along with 26 cannabis plants in various stages of growth.  That is Charge 1, cultivation of a narcotic plant.  Given the set-ups, the circumstances of its discovery and other criminal activity at the house and the number of plants, I am not satisfied that this was committed for a non-trafficking purpose. 

15In your bedroom in the front room of the property, was a plastic bucket containing 12.3 kilos of phosphorous acid.  Phosphorous acid is a proscribed pre-cursor chemical used in the production of methyl-amphetamines.  The proscribed amount for this chemical is 25 grams.  That is Charge 4, possession of a proscribed pre-cursor chemical. 

16Police located the bum-bag near the back fence, which contained a loaded silver hand-gun containing .22 calibre ammunition. This was the same hand-gun Chaouk shot himself with earlier in that day. You are a prohibited person, pursuant to s.3 of the Firearms Act [1996]. That is Charge 5, prohibited person being in possession of a firearm.

17Police located a Toyota Hi-Lux utility and a Kawasaki jet ski on a trailer.  The utility and jet ski had been stolen from a business on 7 March 2015.  You were depicted on this day on your CCTV leaving your home at the relevant time.  Then you were seen on the CCTV at the business, with two unknown males, entering the locked front car park between 9 pm and 9.30 pm by cutting a hole in the fence.  The padlock and chain to the gate were cut and removed, then the chain which secured the trailer was cut and removed.  The trailer and jet ski were then attached to the Toyota utility and driven out of the car park.  CCTV footage from your house shows you returning to your property at about 9.56 pm, driving the utility towing the jet ski with your associates in a second vehicle.  That is Charge 6, the theft which is a rolled-up charge.

18A number of items of stolen property, including four cars, registration plates, a generator and a motorcycle were located at your house.  That is Charge 2, handling stolen goods.

19The specific details of each car and registration plates, its owner, and when they were stolen are detailed in the summary of prosecution opening.  The cars were stolen mainly in the Western suburbs of Melbourne. 

20Included in the property was also a motorbike.  The details of the circumstances of the theft of that motorbike by Chaouk, with the use of the silver handgun, and in your presence, are also included in the summary.

21Additionally, police also located three HP laptop computers, one Acer tablet and one Apple iPad, that being the related summary offence, dealing with property suspected of being the proceeds of crime.  You were taken to Sunshine Police Station where you interviewed.  When interviewed, you gave no comment answers when allegations were put to you.

22I received a report from Ian Jobling, Forensic Psychologist, dated 3 February 2016 and I take that material into account.  You are currently aged 34 and at the time of the offences, you were unemployed and living at 5, Byron Place, Taylors Hill.  You own this property and had lived there on a full-time basis up to the time of the commission of these offences.  The property is in a state of uncompleted renovation.

23You are one of four siblings with two brothers and a sister.  Both your mother and sister were in court to support you and your sister provided a character reference.  You have no children of your own and are now in a relationship with Ms Amanda Quanh who has two children, aged 13 and 11.  She also attended court and provided a character reference.  

24You completed schooling until Year 11, then when aged 17, commenced a carpentry apprenticeship which you successfully completed.  Your father worked in the construction industry and you were able to get work with some of the larger building companies, through him, over a period of 8 to 9 years.  In 2008, you began working for yourself and sub-contracting, registering your own business.  You were unable to find regular and secure employment and by the time of the commission of these offences, you were only working sporadically. 

25It was in about 2008 that your drug-use increased, particularly with cannabis and ice.  Your increased drug use was responsible to a large degree, with you losing your secured paid employment.  Other circumstances also affected you.  At this time, you were engaged to your childhood sweetheart, although she broke off the relationship about one month before the wedding was due to take place.  You turned to increased drug use to deal with these problems.

26Your criminal history commenced in 2009, when you were aged 27 years, around the time your drug use increased.  Your drug use has continued up until your arrest for these matters. 

27The environment in which you were using drugs and your association with other users, are relevant to these and your prior offences.  You reported that your house was a drop-in centre for many involved in the drug environment and that you did not care about them leaving goods there or using drugs with you.  I was informed that at this time you were detached from your family and you were living a dysfunctional life at your own house.  

28Your sister indicates that during this period, she withdrew from contact with you as you would shut her out of your life and she did not feel that she was able to help you. 

29You were exposed to drugs from a young age.  When you were living with your brother, the house was subjected to a number of police raids and also interest from other underworld figures.  You regularly visited your brother in prison who was in custody for drug-related matters.  Your brother was released during 2015.  Since that time, he has supported and encouraged you to remain drug-free and to stay away from your former associates. 

30I was informed that you had commenced a process of rehabilitation in early 2015, and were on a waiting list for residential drug rehabilitation when you were arrested.  You then went cold-turkey in custody and abstained from drug-use.  You spent some of your time in custody at the remand centre and as a consequence of the problems there, were in 23 hour lockdown.  This was your first period in custody and was for a period of approximately 8 months. 

31You were released from custody and placed on bail in November 2015.  I was informed that you were required to comply with CISP requirements whilst on bail and successfully exited that program.  See report tendered, Ms Celeste Maraf, dated 23 February 2016. 

32You have engaged in both drug and psychological counselling and treatment of your own volition since that time.  I received a favourable report from Dr Samir Redzepagic, dated 2 May 2016, reporting you have made immense, positive progress in psychology sessions since your release from custody. 

33You have engaged with psychologist, David Conti, from Drug Health Services, Western Hospital, who provided a report, dated 11 May 2016.  He reports that in some ways, you being arrested for these matters and spending time in custody, has been a blessing in disguise.  He notes:

"It has enabled him to get abstinent from illicit substance use, and more importantly, has ceased all contact with those from the drug scene he was associated with.  The effect of this cannot be understated in terms of Mr Farrugia's ongoing rehabilitation."

34You have also attended at Lamberti and Associates Rehabilitation Consultants since April 2016, and have expressed commitment to weekly sessions and relapse prevention for a period of six months, which will include supervised drug screens.  See report dated 6 May 2016.

35As previously noted, you are currently in a relationship with Amanda Quanh.  She appears to be a positive influence on you and is not a drug-user.  You have known each other for a number of years, but commenced a relationship with her after your release.  She will not tolerate you using drugs, particularly given she has teenage children. 

36I understand you are now residing at your parents' home and that you plan to complete the renovations on your own home once your drug issues are successfully treated.  You have not commenced employment as you have been committed to overcoming your drug issues first, though you hope to soon find regular, stable employment in the building industry. 

37There are good signs in terms of your rehabilitation and it is apparent that you have taken positive steps in overcoming your drug and offending issues.  The prosecution did not dispute that your rehabilitation prospects appear to be good, however, submitted that specific deterrence remained a relevant consideration, given the breach of the suspended sentence and your criminal history. 

38You have a number of prior convictions, mainly related to drugs and driving.  You have had five court appearances and one court appearance after you were remanded for these matters, whereby you were sentenced to four months imprisonment.  In respect of this latter appearance, there is one charge of trafficking amphetamines as well as other drug and driving offences. 

39As previously indicated, this current offending breached a suspended sentence that I imposed on 2 April 2014.  That sentence was imposed for firearm and ammunition offences and did not serve to deter you from continuing to engage in criminal conduct and remaining being involved in the drug culture or lifestyle.  It is of concern to me that these current offences include another firearm offence. 

40I take into account your plea of guilty.  The offer to plead was made at the committal hearing.  There is a utilitarian benefit in the plea, and it has saved cost and time to the community in avoiding the need for a trial. 

41I also accept your pleas indicative of remorse.  The material tendered on your behalf, and your action in attempting to address your issues and change your life, are consistent with remorse.

42There are some aggravating features.  You have a relevant prior conviction for a firearms offence.  You were on a suspended sentence when you committed these offences.  The combination of drugs, firearms and the significant amount of stolen property located at your house reflected a serious level of offending, and by your own admission, involvement in a criminal culture.  The theft was committed in-company, at night, and with the use of equipment or cutters, to gain access to the goods. 

43Principles of general deterrence, just punishment, denunciation and protection of the community are relevant sentencing considerations.  Of particular concern is the presence of firearms with drugs, a potentially dangerous combination.  You allowed your property to be used as a storage for significant amounts of stolen goods, and were directly involved in the theft of some of the goods located. 

44Additionally, given your offences and breach of the suspended sentence, specific deterrence does have a role to play, though it is more limited as I accept your rehabilitation prospects are reasonable. 

45Your counsel conceded that there were no exceptional circumstances, and that the suspended sentence of three months should be restored.  You have been in custody since 17 March 2015, although you were before the Magistrates' Court on other matters on 6 May 2015 where a sentence of four months was imposed.  You therefore have a 124 days or approximately three months PSD referrable to these matters and the breach. 

46Your counsel submitted a Community Correction Order should be imposed, in conjunction with the term of imprisonment, such term to be of a duration that you would not be required to serve any more time in gaol. 

47I had you assessed as to your suitability for a Community Correction Order by Corrections and I was provided with a favourable report.  The prosecution submitted that a combination term of imprisonment and Community Correction Order was within sentencing range, but you should be required to serve more time than that which has already been served.

48You have pleaded guilty to serious offending involving drugs, firearms, and a significant amount of property.  You were, it would appear, entrenched in a criminal culture over a period of years.  Your offending, given your criminal history, would ordinarily warrant a significant term of imprisonment. 

49However, I accept that you have taken steps to address your issues related to this offending since you were released from custody in November, having had spent about 8 months in prison.  You have the capacity to be gainfully employed.  You have the support and network to continue, and hopefully to ultimately overcome your drug issues, and live a law-abiding existence.

50It is necessary to strike a balance between the matters in your favour, including your plea, remorse and significant steps toward rehabilitation, with those other matters listed above, and the gravity and seriousness of this particular instance of offending. 

51It really is a matter for you, Mr Farrugia.  You can continue to progress or you can revert back to the other life that you were experiencing.  If there is a breach it will be brought back before me and I will have no hesitation in sending you to custody.

52In respect of the appeal file which relates to the breach of a suspended sentence, I found the breach proven and I restore the sentence of three months' imprisonment. 

53In respect of the matters on the indictment and the relevant summary offence, you are convicted and sentenced to a Community Correction Order for a period of three years.  You are required to do community work for 200 hours.  The other conditions are as recommended in the report.  They relate to treatment and rehabilitation regarding drugs, and treatment and rehabilitation regarding programs to reduce your offending.  The supervising office will be Sunshine and I am going to have you come back before me, Mr Farrugia, in three months' time for judicial monitoring so that I can basically check out how you are going.  All right?  

54I think my associate's prepared that order.  Ms Ristivojevic, if you want to go ahead. 

55Pursuant to s.6AAA, I would have imposed a sentence of two years imprisonment if you had not pleaded to these matters. 

56ACCUSED:  Thank you, Your Honour.

57HER HONOUR:  I should have also indicated, sorry, the theft of the motor car.  It is mandatory that there is licence disqualification.  That will be a one year disqualification. 

58MS RISTIVOJEVIC:  Just to clarify, Your Honour.  In relation to the misdirection of the suspended sentence, Your Honour, that would - Your Honour does need to, I think, put on the record the pre-sentence detention.

59HER HONOUR:  Yes, I was going to do the pre-sentence detention declaration.  In respect of the appeal file, there is 124 days pre-sentence detention to be declared.  The other thing was those s.464 orders were all incorrectly dated, and did not have all the details put in them, so could you provide drafts of the 464 for me please?

60MS RESSTEL-PIRES:  Yes, Your Honour.

61HER HONOUR:  Did I sign the forfeiture orders the other day?

62MS RESSTEL-PIRES:  Yes, Your Honour signed the disposal and forfeiture orders.

63HER HONOUR:  Yes, it is just the 464 that ended up just being too messy so if you could provide them to my associate.  Mr Farrugia, you will be required to attend a police station and provide a sample and the police are able to use reasonable force in obtaining that sample if you do not cooperate with them.   All right?

64ACCUSED:  Yes.

65HER HONOUR:  Is that all Ms Ristivojevic.

66MS RISTIVOJEVIC:  I believe so, Your Honour.

67HER HONOUR:  Thank you.  I will just stand down. 

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