Director of Public Prosecutions v Gabriele
[2021] VCC 967
•16 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-00137
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VALERIO GABRIELE |
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| JUDGE: | HIS HONOUR JUDGE CAHILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 June 2021; 16 July 2021 |
| DATE OF SENTENCE: | 16 July 2021 |
| CASE MAY BE CITED AS: | DPP v Gabriele |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 967 |
REASONS FOR SENTENCE
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Subject: Trafficking methylamphetamine Catchwords: Guilty plea – 46 year old offender - assisted in manufacture of methylamphetamine – heavily concealed clandestine drug laboratory – amateurish production – drug manufacture related prior conviction – homeless and abusing drugs when offended – 3 years on bail awaiting trial – obtained secure accommodation and not reoffended – very good rehabilitation prospects – history of heart attacks and depression – poor health – prison more burdensome - parity with co-offender Cases Cited: Tyler Worboyes [2021] VSCA 169; R v Van Boxtel (2005) 11 VR 258; Smith v The Queen [2018] VSCA 208; Green v The Queen (2011) 244 CLR 462; Williams v R [2018] VSCA 171 Sentence: Community Corrections Order 2 years and 6 months – 125 hours community work – drug and mental health treatment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Cookson | Ms A. Hogan Solicitor for Public Prosecutions |
| For the Accused | Ms J.L. Clark | Mr G. Thomas Barrister & Solicitor |
HIS HONOUR:
1Valerio Gabriele, you have pleaded guilty to a charge of trafficking in a drug of dependence, namely, methylamphetamine.
2Your offending occurred on 3 September 2017.
3The circumstances are set out in the Summary of Prosecution Opening Upon Plea dated 24 June 2021. They are agreed facts.
4On 4 September 2017, police executed a search warrant on a rural property at Heathcote Junction. On the property, police found a large-scale clandestine drug laboratory in an underground shipping container. Inside the container, police found scientific glassware, apparatus used for the manufacture of drugs of dependence, quantities of chemicals including phosphorus, iodine, lithium and sulfuric acid which are used in the manufacture of methylamphetamine, 1-phenyl-2-nitropropene which is a precursor chemical for the manufacture of methylamphetamine, a pill press and various vessels and containers which contained 3025.6 grams of substances which contained 31.23 grams of pure methylamphetamine.
5DNA analysis provided extremely strong support for the proposition you had worn a glove and handled a respirator found within the laboratory.
6A DNA match with a co-offender, Maney, was found on another glove and another respirator.
7At the property, police found a trailer registered to Maney and a generator which Maney had hired.
8On 4 September, police arrested you with Maney at his Glenroy home.
9When police interviewed you, you exercised your right to remain silent. You were then released.
10On 14 March 2018, you were charged with drug trafficking.
11In January 2019, after a hand-up brief committal, the charge was listed for trial on 25 May 2020. On that day, due to the COVID-19 related disruption to jury trials, the trial date was vacated. On 12 May 2021, before a new trial date was fixed, you pleaded guilty to the charge on the indictment.
12By your guilty plea you admit you assisted Maney in the manufacture of methamphetamine at the property.
13You have a history of drug-related crimes.
14On 12 April 2012, at Melbourne Magistrates' Court, you were convicted of possessing materials for the manufacture of a drug of dependence and released on a community correction order for 12 months.
15More historically, on 13 November 1995, at Williamstown Magistrates' Court, you were convicted and fined $1,500 for cultivate, possess and use cannabis. And, on 3 March 2000, at Sunshine Magistrates' Court, you were fined $1,000 without conviction for possession of cannabis and firearms offences.
16You were born on 24 December 1971 at Melbourne. You were 46 years old when you offended and are now aged 49.
17You are the youngest of three children. Your parents emigrated to Australia with your older brother and sister before you were born. Your father worked as a welder and your mother as a machinist. You grew up in Melbourne's western suburbs and attended local schools.
18When you were around 12 years old, your parents took your siblings and you back to Italy for three years. Your older sister married during that time and she has remained there. When you returned to Australia, with your parents and brother, you settled in Adelaide where you completed year 9 and 10 at local high schools. At 17, you left school and completed a four-year apprenticeship as a textile cutter making men's suits. You continued in that work for another two years, you then drove trucks for two to three years and after that you worked as a builder's labourer for three years.
19In 1993, after your father died, your mother and you jointly purchased a house at West Footscray. In 2010 you moved back home to look after your mother who had heart and kidney problems. You were her full-time carer until she died in 2011.
20After a dispute with your brother and sister about your mother's estate you were evicted from the home and, at the time of your offending you were homeless and abusing crystal methylamphetamine.
21Christopher Maney had said you could stay at the Heathcote Junction property.
22Eventually, the West Footscray property was sold and, from your share of the proceeds, you bought a house and land package at Rockbank where you have lived since.
23You met your current partner four years ago. With her brother, she supported you in court.
24Her brother,[1] mother[2] and daughter[3] wrote references for you. This to the constellation of her brother or partner you me drug community. However, he is seen to have you settle each other down and make “a lovely quiet life or (yourselves) Rockbank.[4] According to him, you treat your heart well and, given her past vulnerabilities, is anxious as to how she would with your absence.
[1] Exhibit 2.
[2] Exhibit 3.
[3] Exhibit 4.
[4] Exhibit 2
25Her mother has seen you “successfully (move) on from the… bad people you used to mix with.”[5] She sees you as “a settling influence” on her daughter.
[5] Exhibit 3.
26Your partner's daughter described you as “a big support” to her children and her.[6] With the support of your partner and her extended family, she has seen you move from “a dark place” of depression and drug addiction to “the best head space (you) could be in.”[7] she worries about the impact incarceration have following last heart surgery.
[6] Exhibit 4.
[7] Exhibit 4.
27Your health is poor. You suffered a heart attack in October 2016 and another on 27 September 2019. You had coronary artery bypass grafts at The Royal Melbourne Hospital on 1 November 2019 and you are managed with a number of medications.[8]
[8] Exhibit 6.
28In May 2019, your general practitioner, Dr Judith Tai, referred you to a psychiatrist who diagnosed you with major depression and generalised anxiety disorder. She recently gave you a mental health care plan for psychological counselling.[9] You are also being treated for severe sleep apnoea by a respiratory physician, Dr James Bartlett.[10]
[9] Exhibit 5.
[10] Exhibit 7.
29Ms Clark, who appeared on your behalf, relied on the following factors in mitigation of penalty:
(a) firstly, your limited role in the manufacture of methylamphetamine;
(b) secondly, your guilty plea; and
(c) thirdly, your poor health.
30She submitted your progress on bail, since you were charged, to secure permanent accommodation, to abstain from illicit drug use, to develop a stable relationship and to not re-offend, demonstrate you have excellent prospects of rehabilitation.
31She also submitted your motivation to avoid illicit drugs, because of your poor health, and the support of your partner and her family are protective factors.
32Overall, she submitted a community correction order can adequately meet the needs of punishment and deterrence as well as your rehabilitation.
33She submitted such a sentence would not offend the parity principle because Mr Maney’s offending was more serious than yours.
34Mr Cookson, who appeared for the Director of Public Prosecutions, described your role as assisting Maney in the manufacture of methylamphetamine at Heathcote Junction. He accepted your role was less serious than Maney's. He noted Maney dealt with the landlord, was involved in the initial setup of the clandestine drug laboratory and was running it on 3 September 2017.
35He submitted your guilty plea was not early. He acknowledged it has significant utilitarian value considering the COVID-related backlog of cases in the County Court.
36He submitted your prior convictions for cannabis cultivation, cannabis possession and possession of material for the manufacture of drugs of dependence are relevant to specific deterrence and your rehabilitation. He accepted that you have been of good behaviour since this offending is a good sign of your reformation but submitted an assessment that your rehabilitation prospects are excellent is premature.
37He submitted the imposition of a community correction order alone would offend the parity principle. He submitted Maney's trafficking offence, which was constituted by his possession of the 32 grams of methylamphetamine for sale, amounted to less criminality than the trafficking charge against you. He submitted Maney’s conviction for his possession of equipment and the materials which were used to manufacture methylamphetamine, for which he was sentenced to 15 months imprisonment, was more analogous to the criminality of your trafficking.
38As the maximum penalty of 15 years' imprisonment demonstrates, drug trafficking is a serious offence.
39Your role was limited. You assisted in the manufacture of methylamphetamine in a heavily concealed clandestine drug laboratory. I accept the extremely low purity of the substantial number of quantities of the drug solutions, solids and residues seized, showed the manufacture process was amateurish.
40Nevertheless, general deterrence is an importance sentencing consideration.
41Your prior convictions in particular, for possession of drug manufacture items, are relevant to specific deterrence and your rehabilitation.
42There are a number of mitigating factors which I must also take into account.
43You are entitled to a sentencing discount for your guilty plea. While the courts continue to deal with the adverse effects of the COVID-19 pandemic, your guilty plea has greater utilitarian benefit than in normal times because it alleviates the current strain on the system of justice.[11]
[11] Tyler Worboyes [2021] VSCA 169, [35] and [39].
44I accept your secure accommodation and stable relationship are protective factors and your prospects of rehabilitation are very good.
45I also accept, because of your poor health, imprisonment will be significantly more burdensome for you than for a person in normal health.[12]
[12] R v Van Boxtel (2005) 11 VR 258, 268 [33] applied in Smith v The Queen [2018] VSCA 208, [32]-[33].
46I must have regard to the parity principle to ensure consistency in punishment. When two or more co-offenders are sentenced, any significant difference in sentences imposed upon them should be capable of rational explanation.[13]
[13] Green v The Queen (2011) 244 CLR 462, 472-3 [28].
47Christopher Maney's trafficking conduct was his possession of the 32 grams of pure methylamphetamine found in the clandestine drug laboratory. The drug laboratory was his. He had built it. His control of it constituted his possession of materials and equipment for trafficking or manufacturing methylamphetamine. His sentence for trafficking was two months' imprisonment and for the possession of trafficking manufacturing materials and equipment, 15 months' imprisonment. His overall sentence was 16 months imprisonment combined with a two-year community correction order.
48Neither the methylamphetamine nor the equipment for its manufacture were yours. You were Maney's helper in the manufacturing process. Your role and moral culpability are materially different to his. Accordingly there is a basis to distinguish your sentence from his.
49In order to consider sentencing options, I have had you assessed for a community correction order and you have been found suitable.
50You told the assessing officer you are not working because of your heart condition. You said that you are currently on Newstart Allowance and have applied for a Disability Support Pension. You said you have smoked cannabis for all of your adult life and, at the age of 30, you started using methamphetamine which you were using daily when you offended. You said you still smoke cannabis in small amounts but have not used methamphetamine for more than two years.
51You also underwent a mental health assessment. You reported, while you sometimes feel anxious, your mood is all right. In the assessing nurse's opinion, you do not require ongoing mental health care to be made a requirement of a CCO. She did not appear to be aware you were diagnosed with a depressive disorder in 2019 and, recently, your general practitioner has signed off on a mental health care plan so that you can obtain the assistance of the psychologist for your mental health issues.
52I accept the assessing officer's recommendations of supervision and drug treatment and rehabilitation as special conditions of any community correction order I might make.
53You were involved in the manufacture of methylamphetamine in a sophisticated drug lab. Your offending was very serious. A community correction order can nevertheless be an appropriate disposition for very serious offending.
54In Williams v R [2018] VSCA 171, the Victorian Court of Appeal, per Beach and Hargreave JJ, said at [47]:
As was made clear in Boulton, in an appropriate case, a community correction order provides a flexible sentencing option enabling punitive and rehabilitative purposes to be served simultaneously. A community correction order can be fashioned to address the particular circumstances of the offender and the causes of the offending and to minimise the risk of reoffending by promoting the offender's rehabilitation. And, although, as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open even in cases of very serious offending.
55Overall, I am satisfied a lengthy community correction order can achieve all sentencing objectives in your case.
56I consider there should be some punitive component to your sentence. Your counsel informed me, notwithstanding your health problems, you consider yourself fit for light duties and I will include a community work condition in your order.
57Because of Ms Jackson's diagnosis of a stimulant use disorder, I will also include a special condition you attend for drug treatment and rehabilitation. And, because of your diagnosis of a mental disorder, I will also include a special condition that you attend for mental health treatment and rehabilitation.
58Mr Gabriele, by the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind.
59I must also look to your rehabilitation. Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner to you, on the charge of trafficking a drug of dependence, methylamphetamine, you are convicted and sentenced to a community correction order which is to commence today. The duration of the order is two years and six months. In addition to the core conditions I impose the following special conditions:
(a) You are to attend for supervision.
(b) You are to perform 125 hours of unpaid community work.
(c) You are to attend for drug treatment and rehabilitation.
(d) You are to attend for mental health treatment and rehabilitation.
(e) I direct up to 50 hours of your treatment and rehabilitation programs can be credited towards your community work hours.
60With your consent, I make a disposal order in the terms of the order filed with the court.
61While there is some artificiality in the process, I would declare, but for your plea of guilty, I would have imposed upon you a term of imprisonment of 12 months.
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