Director of Public Prosecutions v Gauci

[2020] VCC 1888

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 18-02018

DIRECTOR OF PUBLIC PROSECUTIONS

v

LAWRENCE GAUCI

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2020
DATE OF SENTENCE:	26 November 2020
CASE MAY BE CITED AS:	DPP v Gauci
MEDIUM NEUTRAL CITATION:	[2020] VCC 1888

REASONS FOR SENTENCE

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Subject: Trafficking cannabis

Catchwords: Guilty plea – middleman in $25,000 0r $30,000 cannabis sale – 57 year old offender - relevant prior convictions – longstanding substance abuse and depression – strong family support - delay

Legislation Cited:

Cases Cited:

Sentence: 4 months imprisonment and a community correction order for 2 years and 6 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Hancock	Office of Public Prosecutions
For the Accused	Mr J. McQuillan	David Barrese and Associates

HIS HONOUR:

1.Lawrence Gauci, you have pleaded guilty to one charge of trafficking cannabis on 23 January 2018, and two charges of handling stolen goods, that is, a motorcycle and a bicycle, on 6 April 2018.

2.The circumstances of your offending are set out in the summary of prosecution opening dated 6 August 2020 which is Exhibit A.  You came to police attention when they were investigating an associate of yours, Brett Johnstone, who was suspected of manufacturing illicit drugs.

3.Between 8 January 2018 and 6 April 2018, police were monitoring your telephone usage.  During the period, you spoke to many people in relation to trafficking drugs and also dealing with stolen property.  You sometimes discussed cannabis in quantities of ounces and sometimes pounds.  You talked about supplying cannabis in quantities of up to 50 pounds to a number of people for prices ranging between $2,700 and $2,850 a pound.  On 23 January 2018, acting as the middleman, you facilitated the supply of 10-15 pounds of cannabis for $2750 a pound. You arranged, and attended, a meeting between the buyer and seller but it was a rip-off. The seller produced a firearm and stole the cash, $25,000 or $30,000, from the buyer without supplying the cannabis. 

4.On 6 April 2018, police arrested you at your Tarneit home.  You had a stolen mountain bike in the garage and a stolen BMW motorcycle in the shed.  When police questioned you, you denied trafficking cannabis and claimed to have acquired the motorcycle legitimately.  You were charged with these and other more serious offences and released on bail.  The proceeding resolved after committal.

5.You have admitted a criminal record of convictions from 15 February 2006 to 21 December 2016.  You have a number of relevant drug-related convictions.

6.On 15 February 2006, you were released on a community correction order for cultivating cannabis.  On 18 September 2007, you were sentenced to two months' imprisonment wholly suspended for trafficking amphetamine.  On 17 May 2011, you were sentenced to 12 months' imprisonment to be served by an intensive correction order for possessing substances and materials for the manufacture of a drug of dependence and attempted trafficking of amphetamine.  On 18 October 2013, you were sentenced to three months' imprisonment wholly suspended for possessing a precursor chemical and on 19 November 2015, you were released on a community correction order for possession of ecstasy, methylamphetamine and other offending.

7.Mr McQuillan who appeared on your behalf in support of his submissions relied on the following documents,

(a)a report dated 15 November 2020 of Patrick Newton, forensic psychologist;

(b)a further report of Mr Newton dated 4 August 2020;

(c)and a third report of Mr Newton dated 12 May 2012;

(d)a report dated 17 March 2020 of your treating cardiologist, Professor David Kaye;

(e)a medical report dated 16 March 2020 of your treating ophthalmologist, Mr John Rocke;

(f)a medical report dated 13 June 2020 of your treating GP, Dr Hassan Ahmed;

(g)Werribee Hospital records;

(h)voluntary urine screens;

(i)a letter from your daughter, Stacie; and

(j)a letter from the treating specialist of your son, Alex.

8.Your wife and your son, Alex, supported you during the hearing.

9.You were born in Malta on 6 August 1960.  You were 57 years old when you offended and you are now aged 60 years.  You grew up in the Sunshine area and attended local schools.  After Year 10 you trained as a welder at a technical school.  You then worked mainly as a truck driver until 2000 when you started a business making stainless steel fittings for boats.  It was successful for about five years.

10.In the early 2000s, you started experimenting with amphetamines and other stimulants which gave you extra energy for work.  You became addicted and by 2004, you were using these drugs heavily.  In 2005, your business failed and you were forced to sell your family home.

11.You suffered a protracted grief response following your nephew's unexpected death in 1998.  When you lost your business, you lapsed into more intense depression and, in 2007, your son, Alex, was diagnosed with leukemia.  In 2009, you lost the sight in one eye when a bottle shattered while you were cleaning.

12.You sought treatment in relation to your depression and drug abuse but relapsed into substance abuse and drug-related crime.  In 2012, you spent four months in remand custody in relation to charges which were eventually withdrawn.  You have been unable to maintain any stable employment in the years since.

13.You have been married to your wife, Elena, for more than 35 years.  She has remained staunch despite your longstanding drug abuse and financial problems.

14.You have four adult children.  Your daughter, Stacie, wrote an impressive letter to the court.  She confirmed you worked long hours in the business until it failed and then you went missing from the family.  She said, since the birth of your grandchildren, you have come back to family life.  She described you as a changed man and said she has seen more of you in the last two to three years than in the previous 10 or more.

15.Mr Newton assessed you on 10 March and 3 August 2020.  You qualified for a diagnosis of moderate methamphetamine use disorder and persistent depressive disorder.  In August, Mr Newton wrote your depressive symptoms were in remission but your insight into your drug use remained very limited and you were at high risk of relapse.  He described you then as in the early stages of addressing your addiction.  You told him you had been drug-abstinent for about a month.

16.The voluntary urine screens you gave in September, October and November were all negative.  You have been seeing another psychologist, Peter Hanley, regularly since August to tackle your drug and depression problems.

17.Mr Newton said your drug use has had a significantly negative effect across most areas of your life.  In his opinion, you need drug-related treatment under supervision.

18.In addition to your drug and depression issues, you have a number of medical problems including heart disease, no vision in your left eye, an unrepaired hernia and right shoulder degenerative arthritis.

19.In helpful submissions, Mr McQuillan told me your trafficking arose out of your association with other drug users.  You said you purchased the motorcycle for $2,000, a figure far less than its market value and accepted you had dishonestly retained it.  He said one of your dubious friends left the bicycle in your shed.  You accepted, again, you had dishonestly retained it.

20.In mitigation of penalty, he relied on,

(a)firstly, your guilty plea for its utilitarian value and as evidence of remorse;

(b)secondly, your poor health which will make imprisonment harder for you;

(c)thirdly, the protective factor of your strong family support;

(d)fourthly, the additional COVID-related anxiety and concern for prisoners; and

(e)fifthly, the delay in prosecution because during that time, you have not reoffended and, at least recently, you have sought to deal with your drug use.

21.He accepted a term of imprisonment for your offending is inevitable but submitted I should impose a combination sentence to allow for your supervised drug rehabilitation in the community after a short period of enforced remission in gaol.

22.Mr Hancock, who appeared for the prosecution, acknowledged your offending arose out of your association with other drug users.  He submitted general deterrence and denunciation are important sentencing factors for drug trafficking and, considering Mr Newton's opinion you have limited insight into your drug use and are a high risk of relapse, there is a need for specific deterrence. In that behalf, he also noted your record of persistent drug offending. 

23.He acknowledged your guilty plea has utilitarian value and accepted delay, where you had entered your plea 13 months ago, is a mitigating factor.  He also acknowledged your sentence should be moderated for the additional hardship you will suffer, individually, because of your poor health and, generally, due to the prison restrictions of the COVID-19 pandemic. 

24.He submitted while the objective seriousness of your offending is relatively high, a combination sentence would fall within sentencing range.

25.You were involved in an expected sale of 10 or 15 pounds of cannabis for $25,000 or $30,000 .  Your offending was objectively serious.  General deterrence is an important sentencing considering.  You have several relevant drug-related prior convictions; specific deterrence is also a relevant consideration.

26.As Mr McQuillan acknowledged, I must impose a term of imprisonment upon you. 

27.Your offending arose out of your associations with other drug users.  I was told you have cut your ties with those associates.  Your prospects of reoffending are very much dependent on whether or not you can beat your longstanding drug addiction.

28.I accept you have battled depression consequent upon the death of your nephew, work-related stress, the failure of your business, your son's leukemia diagnosis, the loss of sight in your eye and other family difficulties.  I also accept, in the context of running a successful business, you became addicted to illicit stimulants which you used to boost your work capacity and I accept, because you had remained immersed and enmeshed in the drug subculture and its criminal habits for many years thereafter, your risk of relapse is high.

29.However, for two and a half years since your arrest, you have obliged to your bail conditions and not reoffended. You have recently stopped using drugs and taken impressive steps to get assistance for your depression and drug addiction.  Overall, I consider your interests and the community's interests will be best served by a disposition which provides for supervised treatment of your drug addiction and depression after you have served a short prison term.

30.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.  I must also look to your rehabilitation.

31.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 appropriate to you, on Charge 1, trafficking in a drug of dependence and, Charge 2, dishonestly retaining the motorcycle, you are sentenced to four months' imprisonment in combination with a community correction order.

32.I accept the recommendations of the assessing community corrections officer and, in addition to the core conditions, I impose the following special conditions,

(a)supervision;

(b)drug treatment and rehabilitation;

(c)mental health assessment and treatment;

(d)offending behaviour programs; and

(e)judicial monitoring.

33.On Charge 3, dishonestly retaining the bicycle, you are convicted and discharged.

34.I declare you have already served nine days of your sentence by way of pre-sentence detention.

35.Pursuant to s.6AAA of the Sentencing Act, I declare but for your plea of guilty, I would have imposed a sentence of 15 months' imprisonment with a non-parole period of 10 months.

36.I make an order for the forfeiture of items seized in the terms of the order filed with the court.

37.The community corrections order will commence when you are released from prison and will be of a duration of two years and six months.

38.You will be required to attend court on Tuesday, 1 June at 9.30 am for judicial monitoring. 

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