Director of Public Prosecutions v Ferrara

[2019] VCC 2144

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01367

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADRIAN FERRARA

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JUDGE:	HIS HONOUR JUDGE GEORGIOU
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2019
DATE OF SENTENCE:	17 December 2019
CASE MAY BE CITED AS:	DPP v Ferrara
MEDIUM NEUTRAL CITATION:	[2019] VCC 2144

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW     

Catchwords: Trafficking in a drug of dependence – commercial quantity – MDMA – Negligently dealing with proceeds of crime - cash

Legislation Cited: s. 194 Crimes Act 1958; s.71AA Drugs, Poisons and Controlled Substances Act 1981
Cases Cited: Collier v The Queen [2018] VSCA 47; R v Verdins (2007) 16 VR 269
Sentence: Total effective sentence 3 years and 6 months imprisonment with a non-parole period of 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Dawson (plea)   Me E Tinney (sentence)	Office of Public Prosecutions
For the Accused	Ms C. Dwyer (plea) Ms H Anderson (sentence)	Barrese Criminal Law

HIS HONOUR:

1Adrian Ferrara, on 31 August 2019 you pleaded guilty to  one charge of trafficking in a drug of dependence, being not less than a commercial quantity; and one charge of negligently dealing with the proceeds of crime.

2A summary of prosecution opening was tendered at the plea hearing and marked Exhibit A.  It contains a summary of your offending, details of which are as follows: 

3On 8 April 2019 you attended the BreakFree Bell City Hotel in Preston and booked a hotel room.  You paid cash for the room and at the time of checking in you were carrying a black Kathmandu brand backpack.  You checked into Room 333. 

4On 15 April 2019 at approximately 10.35 am you contacted the hotel reception desk and requested to extend your stay in
Room 333 to Friday, 19 April 2019.

5On that same day at approximately 12.30 pm housekeeping staff entered
Room 333 to clean it.  You were not in the room at the time.  While cleaning the room the housekeeping staff checked inside one of the drawers under the bed and saw items first thought to be lost property, which included a wooden bowl inside of which was a plastic bag containing a rock-like substance, a mini electronic weight scale machine and a $5 note.

6The hotel manager was called and attended the room.  He conducted a search of the drawers.  In addition to the items located, the manager also located an Apple brand laptop and a black Kathmandu brand bag.  Inside the bag a large amount of cash was found.  Police were contacted and advised of what had been found. 

7At around 1.05 pm that same day you attended the hotel reception desk and made a partial cash payment for the extension of your stay in
Room 333.  You did not go into the room at that time.

8At 4.15 pm police executed a search warrant of the room.  You were not then present.  Police seized the following items during the search: 

(1) a black Kathmandu backpack containing cash which was later counted and amounted to $40,000, consisting of 124 $100 notes and 552 $50 notes; and

(2) a brown bowl containing a silver set of digital scales; and

(3) a plastic bag containing an amount of brown crystal substance.

9Police obtained CCTV footage which showed you arriving at the hotel on
8 April 2019 in possession of the black Kathmandu backpack. 

10The brown crystal substance was later analysed at the Victoria Police Forensic Services Centre.  Analysis showed that the substance contained 3,4-Methylenedioxy-N-methylamphetamine, otherwise known as MDMA, and weighed approximately 228.5 grams.  The purity was 75 per cent. Thus, the pure quantity of the drug found was approximately 171 grams.  A commercial quantity of pure MDMA is
100 grams.

11Hotel room swipe card records were examined and showed that you were not staying overnight in Room 333 but were attending for short periods of time only.  I am told that you attended on 10 and 11 April and also on the day of your arrest.

12On 16 April 2019 at around 2.40 pm you returned to the hotel and requested access to your room.  Police were called and immediately attended the hotel.  You were arrested.  You were searched and police found $2803 cash also suspected to be proceeds of crime.  You were taken to Heidelberg Police Station for interview.  You answered, as was your right, ‘no comment’ to the police's questions.  You were charged and you have been in custody since that time.

13The trafficking charge relates to trafficking on a single day only, that being
15 April 2019.  The charge is based on you being in possession of the drug which was ultimately to be sold by others.  The learned prosecutor did not dispute your counsel's submissions that you were, in effect, looking after the drugs to be passed on to another, and also accepted that there was no evidence to suggest that you were going to sell the drug.

14Your counsel, Ms Dwyer, informed me that you did not consider your conduct to constitute trafficking as you were not going to sell the drug.  Rather, it was submitted you were holding the drug for a short period of time before it was to be taken by another person.  Ms Dwyer submitted that your conduct was unsophisticated in that you rented the hotel room using your own name and produced your own passport.  You did not make any effort to disguise yourself.  Your image was captured on the hotel's CCTV cameras.  However, you rented the hotel room to keep a distance between yourself and the drugs.  That is, you had sufficient insight to keep the drugs away from where you were living.

15I now turn to your background and personal circumstances.  You were born on 24 July 1988 in Valence, France.  You are now 31 years of age.  You have no siblings.  Your parents separated when you were approximately three years of age.  You have had virtually no contact with your father since then.  You were raised by your mother and in your early years travelled and lived with her in the West Indies and Canada before returning to France.  From the age of 10 you lived with your mother in the town of Marseilles.

16You attended school in Marseilles and experienced bullying from other students.  At the age of 13 you were withdrawn from school and were ‘home- schooled’ by your mother for one year.  The following year you returned to mainstream schooling but struggled academically.  When you were in your fourth year of secondary school you enrolled in a professional school, which is not dissimilar to our system of TAFE schooling.  You completed two years of professional schooling and, in order to gain admission to university, you completed a further two years of night school.

17You attended university in Aix-en Provence.  However, because of financial difficulties you withdrew after two years.  You have had a number of jobs since leaving university, including working as a photographer, teaching photography at Kazakhstan University, work as a tiler and work as a salesman.

18You came to Australia in November 2015 on a working holiday visa.  Approximately one month later your fiancée, Celia Peron, joined you.  You have been in a relationship with her for approximately five years.  Since your arrival you have worked as a fruit picker, tiler and waiter.  You struggled to find satisfactory work to earn enough to support you both.  Your fiancée returned to France on 22 April 2019.  You remain in contact with her and it is your intention to return to France to resume your relationship.

19I was told that your life in Australia was difficult.  You were engaged in low paid employment, often being paid less than the minimum wage, and you found the cost of living burdensome.  For some of the time you were working two jobs, labouring during the day and then as a waiter in the evening.  You reported often working between 55 and 70 hours per week.  Your financial situation worsened once your fiancée commenced an interior design course.  Apart from the cost of the course, she was not able to work the hours she had previously been working.  The financial pressures put a strain on your relationship.

20Tendered on your behalf and marked Exhibit 1 is a report of Ms Carla Ferrari, consultant psychologist, dated 18 October 2019.  You told Ms Ferrari that you started using cocaine when you came to Australia.  Before that you had used cannabis between the ages of 17 and 25 years.  You also told her that you had experimented with MDMA and ketamine on a couple of occasions.  You described to Ms Ferrari a number of psychosocial stressors which contributed to a deterioration in your mental state, financial stress and relationship since your arrival in Australia.

21You said that you began using cocaine to remain alert and cope with your extensive hours of employment.  Your use of cocaine gradually increased to daily use.  You used at such a high level in order to self-medicate your anxiety and stress.  However, rather than help you, it caused further friction with your partner and worsened your depressive symptoms. You reported to
Ms Ferrari that a friend, who knew of your financial difficulties, offered you the opportunity to make some money if you agreed to hold the drugs for a short period.

22That friend explained that another person would contact you to pick up the drugs within the week.  You were offered $4000 for your assistance.  You booked the hotel room to store the drugs and arranged an access card to the room for your friend.  You saw the situation as an opportunity to make enough money to purchase your flight home to France, finalise your bills in Australia and send your belongings home without further financial strain.

23You told Ms Ferrari that you had never been involved in crime and described this involvement as the biggest mistake of your life.  You expressed to her your remorse for your offending and disappointment in yourself. 

24You reported to Ms Ferrari that your mental health had worsened since being in custody.  You experience sleep disturbance due to ruminating.  You feel unsafe and you limit your contact with other prisoners.  You said that you were frustrated at not being able to participate in educational courses on remand and you reported that your only outlets are attending the library and physical training.  I do note, however, that according to your counsel you have in fact completed a number of courses in custody.

25In Ms Ferrari's opinion you presented with symptoms of Major Depressive Disorder and Cocaine Use Disorder prior to and at the time of the offending.  Some of those symptoms persisted and were evident during the clinical interview and psychometric testing.  Ms Ferrari noted that your depressive symptoms commenced prior to your substance use and offending.  In her opinion the symptoms of your depression are not due to substance abuse alone but were exacerbated by such use.

26As to the risk of your reoffending, Ms Ferrari considers it to be low given you have no criminal history, no previous involvement with an antisocial peer group and your limited drug use before coming to Australia.  You reported to her that you plan to return to France where you will have stable accommodation, employment and significant support from family and pro-social friends.
Ms Ferrari considers that you have insight and awareness that your drug taking was problematic and affecting you adversely.  You did in fact attempt to cease drug use a number of times but were unsuccessful.  You did not, however, seek out professional treatment, as I understand it.

27Ms Ferrari considers that you are likely to experience prison as more onerous than an individual without your issues, given that you continue to exhibit moderate to severe symptoms of depression, have never been involved with antisocial peers, and the fact that you find the prison environment quite confronting and hostile, causing you to feel unsafe.  Ms Ferrari notes that the availability of treatment in custody on remand is limited.  She is of the view that your mental health will continue to deteriorate as you have no supports here in Australia and because you do not socialise or integrate with other prisoners.

28It is accepted that you have no prior criminal convictions.  A number of character references were tendered on your behalf and marked ‘Exhibit 2’.  I have had regard to those references.

29Your fiancée, Ms Peron, confirms that in the year before your offending you were under significant stress.  She also had her own issues in 2018 as a result of an abortion.  She confirms that you were sending money to your mother who, having been evicted from her home, was struggling to meet accommodation expenses.  You expressed your sincere remorse for your conduct and the impact it has had upon your fiancée and your relationship.  Ms Peron awaits your release and eventual return to France where you plan to resume your relationship.  I note from her reference that she has been diagnosed with cancer.

30Your other referees, which include your mother, Ms Peron's mother, and friends all speak of your good qualities and the uncharacteristic nature of your drug addiction and criminal offending.  You have generously supported others.  These are all matters to your credit and bode well for your prospects of rehabilitation.

31Charge 1 is a Category 2 offence under s.3(1) of the Sentencing Act. Section 5(2H) of the Act requires that I impose a term of imprisonment unless certain criteria under s.5(2H)(a) to (e) apply. Those exceptions do not apply in your case.

32The maximum penalty for trafficking in a drug of dependence in a quantity that is not less than the commercial quantity applicable to that drug, is 25 years' imprisonment.  The maximum penalty for negligently dealing with proceeds of crime is five years' imprisonment.  The amount of drug which you trafficked is 1.71 times the commercial quantity based on its purity.  You are charged in respect to a single day of trafficking and it is submitted by your counsel that your conduct falls at the lower end of the spectrum of seriousness for the offence of trafficking.  I accept that submission.  I have already referred to your counsel's submissions concerning the lack of sophistication in the commission of the offences.  There is no evidence to suggest that your involvement was any greater than facilitating the movement of the drug and money from one person to another.

33However, drug trafficking itself is a serious offence and this is reflected in the maximum penalty that may be imposed.  Your offence also involves some planning and foresight in the hiring of the hotel room to avoid your partner discovering your involvement in the trafficking.  You distanced yourself from the drug.  The quantity of drug found is not insignificant - 228.5 grams of a mixture of which approximately 75 per cent was pure MDMA.  The proceeds of crime charge relates to money that it was submitted is closely linked to the trafficking charge.  I also accept that submission.  It was not challenged by the learned prosecutor.

34You pleaded guilty at a committal mention on 10 July 2019 and the case proceeded by way of hand-up brief.  It is not in dispute that you pleaded guilty at the earliest opportunity and I accept that by reason of your pleas of guilty you have accepted responsibility for your criminal conduct, you have facilitated the course of justice, and there has been utilitarian benefit to the community as a result.  I also accept that your early pleas of guilty demonstrates your remorse, which is also reflected in what you told Ms Ferrari and in the character references tendered on your behalf.  You are entitled, in my opinion, to a significant discount in penalty by reason of those matters.

35Ms Dwyer submitted that your prospects for rehabilitation are excellent having regard to the fact that this offending is out of character; your significant family support in France; the fact that you have completed a number of courses whilst in custody; and Ms Ferrari's assessment that your risk of reoffending is low.

36I note also under this consideration that you have no prior convictions and you report the cessation of all drug use since your remand.  I have been provided with two prisoner drug assay results dated 5 June 2019 and 1 October 2019, both of which are negative.  However, you are still in need of psychological intervention to address your depressive symptoms and to enable you to develop skills to better cope with stress in the future.  Ms Ferrari considers that engagement in a drug treatment program is required so that you can better understand triggers, potential risk factors and relapse prevention strategies.  Given those concerns I cannot conclude that your prospects at this stage are excellent but I do consider them to be good.

37I also have regard to your remorse, prior good character and prospects for rehabilitation in reducing the weight to be placed on specific deterrence. I do not accept that specific deterrence has no role to play in sentencing you. It has some part to play, albeit reduced. Similarly, the fact that you will be deported at the conclusion of your prison sentence does not mean I am to have no regard to community protection. Your counsel was not able to provide me with any authority to support that submission. In my opinion, in the absence of any authority to the contrary, I am to sentence you on the basis of the sentencing guidelines set out in s.5 of the Sentencing Act 1991.

38Section 5(1)(e) states that one of the purpose for which sentences may be imposed is the protection of the community from the offender. This consideration must apply from the date of sentence and not just upon your release. However, in view of my findings with respect to your prospects for rehabilitation, and Ms Ferrari's opinion that the risk of your reoffending is low, the need to protect the community from you is not a matter of any great weight in my sentencing discretion. Indeed, in my opinion, it is, for those reasons, of very little weight.

39Ms Dwyer submitted that Verdins principles one and five are enlivened.[1]  She relied on Ms Ferrari's opinion that your depressive symptoms commenced prior to your offending and your substance use, and that the impact of your depression at the time of offending appears to have had significant effects on your usual functioning, including reduced insight, poor judgment, impaired decision making, self-destructive or poorly considered behaviour, which is a departure from your normal functioning.[2]

[1] (2007) 16 VR 240; [2007] VSCA 102

[2] See Exhibit 1 at paragraphs 105 – 107.

40Ms Dwyer relied on the Victorian Court of Appeal decision in Collier v The Queen[3] where at paragraph 52, Hargrave JA, with whom Priest JA agreed, stated:

[3] [2018] VSCA 47

'Having regard to the opinions expressed by Ms Lechner, I am satisfied that although the appellant's drug addiction was a major cause of her offending, her underlying depression and post-traumatic stress disorder had a real connection with the offending'.

41Hargrave JA found that the appellant's moral culpability was reduced by reason of the fact that her mental impairments contributed to her having no real sense of what she was doing.

42In your case, Ms Ferrari stated at paragraph 109, that, '[t]he implications of both depression and substance use on Mr Ferrara are therefore noted to have had a detrimental effect on his mood, cognition, behaviour and functioning, and it is my professional opinion that there is a nexus between his experience of psychosocial stresses which led to a depressive disorder, his self-medication and derailment into a substance use disorder to cope and his subsequent offending'.

43Having regard to the opinion of Ms Ferrari of the impact of your depression at the time of your offending, I am satisfied on the balance of probabilities that your moral culpability was reduced by reason of your impaired mental state at the time the offences were committed. 

44Ms Ferrari also stated, at paragraph 115, that you continue to exhibit moderate to severe symptoms of depression.  I accept that the existence of that condition at the date of sentencing will mean that the sentence to be imposed will weigh more heavily on you than it would on a person in normal health.  I note that this is also your first time in custody, and whilst you receive visits from friends, your fiancée and family are in France and so are unable to visit you.  This isolation is an added burden of your imprisonment.

45I accept the submission made by Ms Dwyer that Verdins principles one and five apply.  I also accept that because your moral culpability is reduced, so too is the need for denunciation.  That is not to say that the need for denunciation does not apply in your case.  It clearly does.  Drug trafficking is a serious crime and those who sell drugs do much harm to the community.  There is also a strong need to deter other would be traffickers and for appropriate punishment of those who choose to traffic in illicit drugs.  Your counsel concedes that in all of the circumstances the only appropriate punishment is one of an immediate term of imprisonment. 

46In sentencing you I have also had regard to current sentencing practices for the offences to which you have pleaded guilty.

47Mr Ferrara, would you please stand up.

48On the offence of trafficking in a commercial quantity of MDMA you are convicted and sentenced to a term of imprisonment of three years and six months.  On the charge of negligently dealing with the proceeds of crime you are convicted and sentenced to six months' imprisonment.  I have regard to the link between the trafficking charge and the negligently dealing with the proceeds of crime charge, as well as the principal of totality.  I order that the sentence imposed on Charge 2 be served concurrently with that imposed on the trafficking charge.  I set a non-parole period of 24 months.

49Pursuant to s.18 of the Sentencing Act I declare a period of 244 days as pre-sentence detention.  Had it not been for your pleas of guilty I would have sentenced you to a term of imprisonment of four years and two months with a non-parole period of three years.

50I make the orders for disposal and forfeiture sought.  I also make an order for a forensic sample to be provided.  Do you have a copy of that order?

51MS TINNEY:  I do, Your Honour.  I believe one was also e-lodged this morning with the court but I do have a hard copy.

52HIS HONOUR:  Thank you, Ms Tinney.  I make the order on the basis of the seriousness of the circumstances of the offending warrant the order and I understand, I may be corrected, Ms Anderson, that the order is not opposed?

53MS ANDERSON:  Yes, I believe that is correct, Your Honour.

54HIS HONOUR: Thank you. Pursuant to s.464ZF(2) of the Crimes Act I order that Adrian Ferrara undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with subdivision 30A of Part 3, Crimes Act 1958, until a sample of sufficient standard is obtained for placement on the database.

55Mr Ferrara, I need to caution 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.

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