Director of Public Prosecutions v Fortunato
[2016] VCC 537
•29 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-01150
Indictment No. D12270299
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FRANK FORTUNATO |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 January 2016 | |
DATE OF SENTENCE: | 29 April 2016 | |
CASE MAY BE CITED AS: | DPP v Fortunato | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 537 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – trafficking in a drug of dependence (methylamphetamine) – possess cartridge ammunition while not holding a licence – plea of guilty
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981, s71AC; Crimes Act 1958; Sentencing Act 1991
Sentence: Community Correction Order for 3 years. Section 6AAA declaration:
3 years’ imprisonment with a non-parole period of 18 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Regan | John Cain Solicitor for Public Prosecutions |
| For the Accused | Mr G Boas | Emma Turnbull Lawyers Pty Ltd |
HIS HONOUR:
1 Frank Fortunato on 28 January 2016, you pleaded guilty to Indictment No. D12270299 containing one count of trafficking in a drug of dependence, namely methylamphetamine, between 20 December 2012 and 12 July 2013. You admitted your prior convictions.
2 The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment.
3 You also pleaded guilty to a related summary offence, namely possess cartridge ammunition while not holding a licence. The maximum penalty for this offence is 10 penalty units.
4 Tendered as Exhibit A on the plea was the Prosecution Opening for plea that set out the facts upon which the charges to which you have pleaded guilty were founded.
5 In summary form, you were detected as a result of a telephone intercept warrant on the service of Dat Chau, one of your co-offenders. The investigation included a telephone intercept on telephones used by you between 20 December 2012 and 17 February 2013. It is alleged that you trafficked 197 grams of methylamphetamine over a period of six months or so that included four transactions to a police undercover operative. There were four such transactions, one of half-an-ounce of 80 per cent pure methylamphetamine and three one ounce transactions of 90 per cent pure methylamphetamine. It is plain from the purity of the last mentioned transactions that you were close to the source of manufacture.
6 You sourced your methylamphetamine from Dat Chau, as well as your co-offender, Paul Boehm.
7 On 31 July 2013, police executed a search warrant at your address in Taylors Lakes where an amount of cash and a single cartridge was seized. You were interviewed under caution on that day and exercised your right to remain silent.
8 You have a lengthy prior criminal record.
9 Between 1978 and 1991, you accumulated 23 convictions from 14 court appearances, including a sentence of 12 months’ imprisonment in 1982 for trafficking in heroin.
10 From 1991 until 2012, you did not offend. This is a period of approximately 21 years.
11 In July 2012, you received a bond with conviction in respect of charges of unlawful assault and contravention of a Family Violence Intervention Order in respect of your then partner.
12 I was informed that on 29 August 2013, subsequent to your arrest for the instant offences, you were sentenced to 18 months’ imprisonment with a non-parole period of 24 months’ imprisonment for one charge of recklessly causing serious injury. You were not granted parole on this sentence because you were awaiting trial on the instant offences.
13 I was informed that you have served 34 days by way of pre-sentence detention in respect to the instant offending.
14 You were born in 1960 to migrant parents and have four siblings. You grew up in the Moonee Ponds area and you were educated at the Moonee Ponds Primary School and later at Essendon High School. You completed Year 7 but left school in Year 8 and went to work as a sheet metal worker.
15 I was told that you described your upbringing as normal and that you had a good childhood.
16 You worked in sheet metal production for two years or so and thereafter had casual work at the Melbourne Showgrounds. As your counsel put it thereafter, you had a “more colourful” occupation, in that you worked as a male stripper for some 20 years until you started to work with your older brother carting asphalt, before buying your own truck. You worked as an owner-operator for a period of approximately 13 years.
17 As to your history of drug abuse, you were introduced to alcohol at 15 but have been a social drinker during your adult years. You began smoking cannabis at 16; however, presently only smoke occasionally. At 21 years of age, you commenced to use “speed” which I take to mean amphetamine, and you used or abused this drug for a period of 10 years or so thereafter. You dabbled with heroin, however, you did not like its effects. You also used ecstasy recreationally.
18 You have had two significant relationships, the first with a woman named Deborah, with whom you have had two children: Zane, aged 27, who resides in China, and a daughter, Paris-Leigh, aged 21. You have contact with each of those two children and they are each in court supporting you.
19 Your second relationship was with a woman named Carmel, a relationship that you described as toxic to the author of the pre-sentence report that I ordered on 4 March this year. There is one child of that union, a daughter, Mia. You lived together with Carmel for approximately three years before separating some three to six months ago. Your former partner abuses alcohol and illicit drugs and you used drugs together. Your prior appearance for contravening a Family Violence Intervention Order and unlawful assault relates to Carmel. Presently, there are no intervention orders on foot in respect of her.
20 In April 2011, your father died suddenly as a result of inoperable cancer. Your father’s death adversely affected you. You could no longer work, you sold your truck and shortly thereafter, you commenced to use methylamphetamine at an ever-increasing rate and found yourself acting as a middle man to fund your habit.
21 As an aside, you have been in the past a lawful owner of firearms, and the single cartridge that was found at your home was a leftover from those times.
22 Tendered as Exhibit 1 was a report from Sunbury Community Health dated 17 September 2005 setting out your acceptance into a “Men’s Behaviour Change Program”. I was informed that you completed that program successfully.
23 Tendered as Exhibit 2 were a number of reports from Karin Steinhoff, psychologist, that in part describes your childhood in entirely different terms to that described to the author of your pre-sentence report. Suffice it to say that you have from time to time attended on Ms Steinhoff for therapy in respect to anxiety and your substance abuse.
24 You have completed the Torque program offered by UnitingCare ReGen, a program that operated over a number of weeks, Monday to Friday from 10.30 am to 3.30 pm. Additionally, the Children’s Court of Victoria has had involvement in regulating your conduct in respect of drugs, in that you are required to undergo regular urine analysis as part of the Court’s supervision of your life in respect to your daughter, Mia (See Exhibit 4 on your plea and the pre-sentence report dated 26 April 2016.)
25 You see your daughter, Mia, three to four times a week and you are hopeful of becoming her custodial parent. However, according to the pre-sentence report, your former partner, Deborah, has been given custody of your daughter, Mia, and what effect this may have upon your future capacity to become a custodian of your daughter is uncertain.
26 As at the date of the pre-sentence report, you were said to be “couch surfing” because you were not permitted to live with your former partner, Deborah, as she had custody of your daughter, Mia. However, since that time you have found stable accommodation.
27 You have pleaded guilty at the earliest opportunity to a settled indictment. You are entitled to the benefits which flow to you from that plea, namely that it is evidence of your remorse and it has utilitarian value.
28 You work on a casual basis as a carpet layer and in addition, you are in receipt of social security payments.
29 It is almost three years since you were arrested for the instant offending and since then you have served eighteen (18) months’ imprisonment, six (6) months of which was the period for which you were eligible for parole but which was not granted to you because of this matter being outstanding. I am obliged to take that period of imprisonment into account when sentencing you in the application of the principle of totality.
30 Your offending is a serious example of street-level trafficking. The sales that you made to an undercover police operative indicate that you were close to the source of manufacture. You trafficked as a user seeking to fund your own drug habit. Whilst this is not mitigatory of your offending, such drug offending is ubiquitous in our community.
31 You have been diagnosed with depression and are prescribed medication for this condition. Additionally, you suffer from Type 2 diabetes and are prescribed Metaformin and another medication that you take in tablet form.
32 All in all, at the age of 55 years of age, you present as a pathetic individual.
33 The pre-sentence report assesses you as suitable for a community corrections order.
34 If you remain drug free and in employment while maintaining a proper relationship with your daughter Mia and your former partner, Deborah, there is, in my view, little utility in sentencing you to a term of imprisonment.
35 I intend to release you on a community corrections order. I can only do that with your consent. Do you consent?
36 OFFENDER: Yes, Your Honour.
37 HIS HONOUR: With your consent, I am prepared to release you on a community corrections order for a period of three (3) years with conditions:
(1) That you perform 300 hours of unpaid community work;
(2) You be supervised by the Secretary of the Department or his nominee;
(3) That you undertake mental health assessment and treatment;
(4) That you undertake drug treatment and rehabilitation; and
(5) That you undertake offending behaviour programs aimed at reducing your risk of re-offending.
38 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to three years’ imprisonment with a non-parole period of eighteen months’ imprisonment. My associate will bring the appropriate documentation to you. Please sit down, Mr Fortunato.
39 (At this stage the court proceeded with another matter.)
40 I take it that the orders sought by the Crown in respect to Mr Fortunato are not opposed.
41 MR BOAS: There was one order in relation to forfeiture of $230 of cash, Your Honour, that was opposed on the previous occasion on the basis that that charge was withdrawn.
42 HIS HONOUR: Yes.
43 MR BOAS: Apart from that there's no opposition.
44 HIS HONOUR: Mr Regan, what do you say in respect to the $230 on the basis that the charge was withdrawn?
45 MR REGAN: Well Your Honour, the only summary charge was the ammunition charge so if there is an order for forfeiture of money there's no basis for it.
46 HIS HONOUR: That's the end of that matter then.
47 MR REGAN: If it still remains in that bundle of documents.
48 HIS HONOUR: It does, but I won't sign it.
49 MR REGAN: Yes.
50 HIS HONOUR: I'll leave it there when I return matters to you.
51 MR REGAN: May it please the court.
52 (At this stage the court proceeded with another matter.)
53 HIS HONOUR: Mr Fortunato, will you please stand up. In respect of the forfeiture order and disposal order, I have made those and I hand those down. You too have been released on a community corrections order for a period of three years. The conditions that you perform 300 hours of unpaid community work, that you be under the supervision of a community corrections officer, that you undergo assessment and treatment for drug abuse or dependency as directed by the Regional Manager, that you undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital and residential facility as directed by the Regional Manager and that you must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager.
54 I regard you to be in a somewhat different position from Mr Boehm. If you breach any of the conditions or commit a criminal offence during the currency of this order, I can almost guarantee you a gaol sentence. Do you understand? This is your second conviction for trafficking in a drug of dependence. You have got out by the skin of your teeth.
55 There is an application for a 464ZF order. I have made that order for a scraping from your mouth. I have done so because of the seriousness of the circumstances of the offending warrant the order, your prior convictions warrant the making of the order, the order was not opposed and the granting of the order is in the public interest. You are to attend upon the officer in charge of the Moonee Ponds police station at 766 Mount Alexander Road, Moonee Ponds during a period of four weeks commencing 14 days after the date of this sentence. If you do not attend, you breach the order. Do not breach the order.
56 I must inform you that if at the time of request 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. I hand down a copy of that and if that might be copied too, please. Please sit down, Mr Fortunato.
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