Director of Public Prosecutions v Gelmi
[2020] VCC 864
•16 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02317
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL GELMI |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2020 | |
DATE OF SENTENCE: | 16 June 2020 | |
CASE MAY BE CITED AS: | DPP v Gelmi | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 864 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Trafficking – methylamphetamine - 1-4 Butanediol possession for sale – single day - possession of cannabis and oxazepam – possession for own use - no criminal record – drug addiction – trafficking to support habit – pre-sentence detention
Legislation Cited:
Cases Cited:
Sentence: 182 days imprisonment and 18 month community correction order with conditions. Fines with respect to possession of drugs of dependence.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Raimondo | Office of Public Prosecutions |
| For the Accused | Mr J. Saunders | Valos Black & Associates |
HIS HONOUR:
1 Daniel Gelmi, on 27 May 2020 you pleaded guilty to two charges of trafficking in a drug of dependence, namely methylamphetamine and 1,4-Butanediol and two charges of possession of a drug of dependence, namely cannabis and oxazepam respectively.
2 In the circumstances of your case it is agreed that the maximum penalty for trafficking in a drug of dependence is 15 years imprisonment. I will return to the applicable maximum penalty for possession of a drug later in these reasons.
3 The circumstances of your offending are set out in the summary of prosecution opening tendered at the plea hearing. The summary was not in dispute.
4 At about 4:30am on 21 May 2019 you were stopped by police while you were driving along Clyde Road, Berwick. You had two passengers in the car with you. You appeared nervous and police told you that they intended to search the car for drugs. You removed your jacket for the purposes of the search and in doing so, attempted to throw away a zip-lock bag containing white powder. Police seized the zip-lock bag, together with an apple iPhone and $1060 in cash which were found on you. You were arrested and conveyed to the Narre Warren police station for questioning.
5 Police also executed a search warrant at your home in Garfield and found the following items in the bedroom shared by you and your wife:
· A large amount of zip-lock bags, a bong, ice pipe and other drug paraphernalia;
· A sealed bag containing material believed to be cannabis;
· One zip-lock bag containing 12 unidentified yellow tablets weighing 1.4 grams;
· Four zip-lock bags inside a pencil case containing a substance believed to be methylamphetamine, with a combined weight of 9.15 grams;
· A large zip-lock bag inside a sunglasses case containing:
o five further zip-lock sealable bags containing a substance believed to be methylamphetamine, weighing 26.8 grams combined;
o a further zip-lock bag, inside of which were 2 smaller zip-lock bags containing:
§ a substance believed to be methylamphetamine, weighing 5.5 grams;
§ a substance believed to be methylamphetamine, weighing 6.1 grams;
o one zip-lock bag containing 2 unidentified orange tablets;
o one large zip-lock bag containing a large quantity of empty zip-lock bags believed to be used for preparation of trafficking drugs;
· A sunglasses case containing 2 zip-lock bags containing substance believed to be methylamphetamine, weighing 3.5 grams combined;
· A water bottle containing liquid believed to be 1,4-Butanediol, weighing 153.6 grams;
6 You were interviewed by police. You answered ‘no comment’ in relation to the drugs found on you at the site of the arrest. You were asked about the drugs at your home to which you stated “there may have been a small amount, but if there was … they would’ve been mine.” You went on to say that the drugs to which you were referring were “methamphetamine”, “GHB” and a “little bit of cannabis”.
7 You were charged and remanded in custody where you remained until 19 November 2019, when you were released on bail.
8 Charge 1, trafficking in methylamphetamine, is based on your possession of the drug for sale.
9 The trafficking is charged on a single day only, that being 21 May 2019. The total weight of the powder seized was 79 grams, 67 grams of which was pure methylamphetamine. The traffickable quantity for methylamphetamine is 3 grams pure.
10 Charge 2, trafficking in 1,4-Butanediol is based on you having possessed it for sale. The bottle seized from your bedroom weighed 153.6 grams. The purity was not determined. A traffickable quantity of 1,4-Butanediol is 50 grams. This trafficking charge also relates to a single day, that being 21 May 2019.
11 Charge 3, possession of a drug of dependence namely Cannabis L, relates to the 27.4 grams of cannabis seized from your home.
12 Charge 4, possession of a drug of dependence namely oxazepam, relates to two orange tablets which weighed .04 grams and contained oxazepam, also seized from your home.
Personal Circumstances
13 I turn now to your background and personal circumstances.
14
You were born in December 1985. At the time of the offending you were 33 years of age. You are the youngest of two children. Your father is a
self-employed boilermaker and your mother is a health care worker.
15 You attended primary school at Pakenham Consolidated. You had no issues in your primary schooling.
16 You then attended Pakenham Secondary College for years seven to 10. Your attitude towards schooling changed and as a result your performance and behaviour deteriorated. You were suspended from school on several occasions for smoking and fighting. You left school at the end of year 10 when you were 15 years of age. You were anxious to leave school and your father agreed that you could if you undertook an apprenticeship. In 2000 you obtained an apprenticeship in civil construction with a company that was engaged primarily in the installation of sewage works on real estate development sites.
17 You completed your apprenticeship and also obtained a Certificate 3 in Civil Construction from Victoria University. You remained with the company as a machine operator until 2007. From 2007 to 2013 you continued working as a machine operator at two different companies.
18 In late 2005 you began a relationship with Vicki Hume. You and Ms Hume have two children now aged 13 and 11 years. You and she separated in 2012 but you remain on good terms. You have access to your children every second week-end and have become involved in their school and sporting activities.
19 In 2007 your parents borrowed money and purchased an excavator. They thought you could start an earth moving company to be run as a family business. They did not consult with you about the type of machine needed. The excavator they purchased was too small and unsuitable for large projects. Over time this became problematic.
20 You continued full time employment and used the family excavator on weekends when appropriate jobs could be obtained. The business was not very profitable because jobs appropriate for the size of the excavator where of short duration and transporting the excavator was costly. You suggested to your father that he purchase a truck and trailer to transport the excavator. Again, without consulting you, your father purchased a truck and trailer. The vehicle purchased, however, was not suitable for transporting the excavator off-road. This lead to family conflict.
21 You began using methylamphetamine and GHB in 2007 when your best friend committed suicide and you had difficulties dealing with your grief. Your partner Ms Hume also began to use drugs and over time both your use of drugs escalated. There were difficulties in your relationship and in late 2012 you separated. This added to the escalation of your drug use.
22 In 2013 you became unemployed when your employer was put into liquidation. Instead of looking for a new job you descended into a pattern of habitual drug use. You became homeless staying in the homes of other drug users from time-to-time.
23 Your relationship with your mother has been strained all your life and remains so to this day. She would have nothing to do with you during this difficult period. However, your father kept in contact to check on your wellbeing.
24 Towards the latter part of 2014 you were admitted to the Alfred Hospital Emergency Department on three occasions in the one week because of your drug use. You were referred to the Crisis Assessment Team who told you that if you did not take steps to address your drug taking, you would be declared an involuntary patient and admitted into a psychiatric institution.
25 In response, you voluntarily gained admission to Odyssey House in Lower Plenty sometime, it would seem, in 2014, where you completed an 11-month treatment program and progressed to a ‘level three resident’. During your stay, you attended a number of consultations with psychiatrist, Dr Sood, where much of the counselling time was spent on the difficult relationship you had with your mother.
26 While at Odyssey House you met your now wife, who was also there as a resident. You began living together towards the end of 2015.
27 In 2015 you left Odyssey House and undertook contract work using the family excavator. Again, the work was not very profitable.
28 Between 2016 and 2018 you worked as the foreman for Brown and Brown, an earthmoving company. You enjoyed this position and you were well looked after by your employer.
29 In mid-2018 your father proposed an arrangement whereby you would hire the family excavator for $501 per week and undertake subcontracting work for a local earth moving company, Taylors, in the Garfield area. A representative of Taylors told your father that it had enough work to keep you engaged five to six days per week. Despite not wanting to leave your job, you agreed to the venture out of a sense of obligation to your father because he continued to owe money on the excavator.
30 The volume of work promised did not materialise. At best you obtained one to two days of work per week and you experienced difficulty getting paid for the work you performed. You struggled to meet fuel expenses and pay for the hire of the excavator and equipment. This put strain on your relationship with your family.
31 You were under considerable stress and after a period of abstinence of some 4 years, you resorted to using methylamphetamine and GHB to try and deal with that stress. You again became addicted. You experienced financial difficulty and you began trafficking drugs to support your habit and to alleviate your financial problems. Your wife, who was pregnant at this time, also resumed drug use albeit at a much lower level than you. Your wife gave birth on 29 May 2019 while you were in custody. Due to your wife’s drug taking, Child Protection became involved with the child. Your daughter was placed on an interim accommodation order with her maternal grandmother in Wangaratta. Your wife was allowed to reside with her mother provided she undertook counselling and drug screening.
32
Following your committal hearing, where you were discharged on the more serious offence of trafficking in a commercial quantity of methylamphetamine, you were admitted to bail with conditions. You went to live with your
brother-in-law in Wangaratta and were permitted supervised access to your daughter. You were also required to enter an outpatient program with Ms Amanda Brown, Rehabilitation Consultant at the Millswyn Clinic. In compliance with that condition, you travelled weekly from Wangaratta to Melbourne to attend upon Ms Brown. You also underwent twice-weekly supervised urine screens and attended meetings at Narcotics Anonymous. Ms Brown arranged for you to continue drug and alcohol counselling through Gateway Health Services in Wangaratta. You have remained abstinent from drugs since your release on bail and since your return to Melbourne you continue to attend for drug counselling with Ms Brown.
33 You and your wife currently live in rental accommodation together with your daughter. You spend time with the children of your first relationship every second weekend. You have become more involved in their lives. You work on a part-time basis with your father as a welder.
Sentencing Considerations
34 In relation to Charge 1, the quantity of pure methyl amphetamine in your possession was over 22 times the traffickable quantity.
35 Based on that quantity, it was submitted by Mr Raimondo, who appeared on behalf of the Director of Public Prosecutions, that trafficking in that quantity of methylamphetamine falls at the mid to higher end for the offence of trafficking. It was agreed that 79 grams of methylamphetamine, if sold in one ounce lots, would have a street value of $9613.
36 Charge 2, the charge of trafficking in 1,4-Butanediol, is based on you having possessed it for sale. Butanediol is sometimes used as a substitute for other illegal substances such as gamma hydroxybutyrate - ‘GHB’. The bottle seized from your bedroom weighed 153.6 grams. You therefore had three times the traffickable quantity in your possession.
37 It was agreed that the street value of the 1,4-Butanediol, if sold in 3-gram lots, would yield $563.20.
38 Charge 3, possession of Cannabis L, related to the 27.4 grams of cannabis seized from your home. Being less than 50 grams, it is a ‘small quantity’ under the Drugs Poisons and Controlled Substances Act 1981 (Vic).
39 Charge 4, possession of oxazepam, related to two orange tablets which weighed .04 grams and contained oxazepam, which were seized from your home. Oxazepam belongs to the class of drugs called benzodiazepines and produces a calming effect.
40 The offence of trafficking in a drug of dependence, particularly methylamphetamine, is a serious matter. Persons who engage in trafficking drugs contribute to the misery that drug use causes to those suffering drug addiction and too much other drug related crime. General deterrence and denunciation are therefore significant sentencing considerations. The sentence to be imposed on you must not only act to deter you from engaging in such activity but also deter others who are minded to engage in such activity.
41 Mr Saunders, who appeared on your behalf, submitted, in effect, that your trafficking was as a result of the difficult financial position you were in and also in order to fund your own addiction to drugs. I accept that was your motivation for your becoming involved in the trafficking of those two drugs.
42 The trafficking relates to possession for sale on one day.
43 Mr Saunders further submitted that your possession of the cannabis and the oxazepam was for your personal use. Both drugs were used by you, it was submitted, in order to calm you down. In the absence of any indicia that would suggest you were trafficking in those drugs, and given their quantities, the manner in which they were found, and the presence of a ‘bong’, I am satisfied that you possessed those items for your own use. Thus the maximum penalty pursuant to s 73(1) of the Drugs Poisons and Controlled Substances Act 1981 on Charge 3 is five penalty units and on Charge 4, 30 penalty units and or one year imprisonment.
44 Mr Saunders relied on a number of matters in mitigation of penalty.
45 First, reliance was placed on your pleas of guilty. Your pleas of guilty should be regarded as having been entered at an early stage given that you were you were originally charged with more serious offending. The learned prosecutor accepted that this was the case. I will sentence on the basis that you entered your pleas of guilty at the earliest reasonable opportunity.
46 Your pleas of guilty have utilitarian benefits to the Court and community in that a trial has been avoided and witnesses spared having to give evidence. I accept also the submission that your pleas of guilty facilitated the course of justice and demonstrate your willingness to accept responsibility for your conduct. They are also an indicator of remorse for your offending.
47 I am prepared to accept that you are remorseful for you offending. Your friend Kirsten Fawcett has provided a reference to the Court which speaks of your ‘open and honest remorse’. The true extent of your remorse is, however, difficult to gauge.
48 Your conduct since being released on bail where you have continued to receive counselling suggests a change in attitude towards your offending. I have had regard to the letter tendered on your behalf from Ms Amanda Brown. Ms Brown confirmed that she continues to see you since you were granted bail in November 2019. You now travel from Pakenham to visit Ms Brown as required. You have known Ms Brown since your time at Odyssey House. She stated that your relapse has come with great consequence. You missed the birth of your baby as well as the first few months of her life as a result of your being in custody. Despite that, it was Ms Brown’s opinion, as well as that of your father and your wife, that you needed to remain in custody until your attitude changed from one of blaming others for your predicament to one of taking responsibility. It would seem that you agreed that you needed the extra time to correct your attitude. Ms Brown stated that you are now fully cognisant that your recovery must come first and that you are willing to do what it takes to sustain your drug free status. You appeared to Ms Brown, who has seen you, your wife and your three children at the Millswyn Clinic, to be closely connected with them, happy and grateful. Ms Brown noted that you are working four days per week with your father which has enabled you to attend appointments with her and provide urine drug screens. She concluded her report as follows - “Mr Gelmi has learned a very hard lesson having relapsed to drug use … He has successfully removed himself (from) previous drug using associates. He and his wife have been closely monitored by DHHS in the first few months of their baby’s life with the writer liaising with DHHS and sharing results of their urine drug screen results. His determination and vigilance has paid off with the family living independently enjoying a peaceful pro-social lifestyle”.
49 Both counsel submitted that your prospects for rehabilitation must be approached with caution and will depend upon you continuing your rehabilitation program and remaining abstinent from the use of drugs. Mr Saunders relied on the fact that in the past you remained drug-free for a significant period of time and that in recent times you have developed insight into the difficulties your drug use has caused you. He also relied on your trade skills and strong history of employment as factors enhancing your prospects for rehabilitation. And despite the difficult relationship you have with your mother, you continue to enjoy support of your wife and wider family. I accept that there are a number of factors that reflect well on your prospects but I agree that your rehabilitation can only be achieved if you remain abstinent from drugs.
50 I also have regard to the fact that you are 34 years of age and this is your first appearance before a court charged with criminal offending, and further that the approximate 6 months you have already served on remand, your first time in custody, will have had a significant deterrent effect upon you.
51 Mr Saunders submitted that I should sentence you to a combined gaol and community correction order. Mr Raimondo agreed that a combination penalty was within the range of sentences reasonably open in all the circumstances of your case.
52 At the conclusion of the plea hearing I had you assessed for a community correction order. I have now received a report of Ms Monica Dankoff dated 2 June 2020. Ms Dankoff stated that during assessment you displayed considerable insight into the impact your behaviour has had on yourself and the wider community. You were found to be suitable for a community correction order.
53 In all of the circumstances, particularly given that this is the first time you are appearing before a court charged with criminal offending, I propose to sentence you to a combined sentence of gaol and a community correction order pursuant to s 44 of the Sentencing Act. You have already made significant progress towards your rehabilitation and I consider that this ought to be further encouraged. The community will best be protected with your complete rehabilitation. Accordingly, subject to your consenting to enter into a Community Correction Order, I will not require you to serve any further gaol time.
54 Before seeking your consent I advise that the proposed Correction Order will be for a period of 18 months duration with the following conditions. These are the mandatory conditions that attach to all community corrections orders:
· You must attend at the Warragul Justice Service Centre within two clear working days after the commencement of this order.
· You must not commit another offence for which you could be imprisoned during the time the order is in force.
· You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011. That means, in effect, that you must not attend at the Community Corrections Office drug or alcohol affected.
· You must report to and receive visits from the Secretary or his or her delegate.
· You must let a Community Corrections officer know within two clear working days of you changing your address or job.
· You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate.
· You must obey all lawful instructions from and directions of the Secretary or his or her delegate.
55 I also propose the following additional conditions -
· that you be under the supervision of a community corrections officer;
· that you attend for assessment, treatment and rehabilitation for drug abuse and dependency;
· that you attend for assessment, treatment and rehabilitation for any mental health issues; and
· that you perform 150 hours of community work. All hours of treatment and rehabilitation may be accredited as hours of unpaid community work.
56 Mr Gelmi, you should also understand that if you breach the order you may be brought back before the court to be re-sentenced on the original charges.
57 Mr Gelmi, do you wish to speak to your legal representative before deciding whether or not you consent to the making of the order?
58 OFFENDER: No, I don't need to speak to my lawyer.
59 HIS HONOUR: All right. Do you consent to the making of the order?
60 OFFENDER: Yes.
61 HIS HONOUR: All right.
62 Mr Gelmi, will you now please stand?
63 Having given your consent to the imposition of a community correction order I sentence you as follows. On Charges 1 and 2, you are convicted and sentenced to an aggregate term of imprisonment of 182 days. I impose an aggregate sentence of imprisonment as these offences are of the same or similar character.
64 You are also placed on a Community Correction Order in respect of both charges for a period of 18 months on the conditions which I just read out to you.
65 Do either counsel require me to read through the conditions again?
66 MR SAUNDERS: No. Thank you, Your Honour.
67 HIS HONOUR: All right.
68 On the charge of possessing cannabis you are convicted and fined $200.
69 On the charge of possessing oxazepam you are convicted and fined $100.
70 Pursuant to s 18 Sentencing Act 1991 I reckon the period of imprisonment already served under the sentence is 182 days.
71 Pursuant to s 6 AAA Sentencing Act the sentence I would have imposed had you not pleaded guilty to the two trafficking charges is one of 10 months' imprisonment and a two year community correction order.
72 Mr Raimondo, I understand that there are orders that are sought.
73 MR RAIMONDO: Yes, Your Honour, for disposal and forfeiture. They've been e-lodged with the court.
74 HIS HONOUR: Mr Saunders, is there any objection to the making of those orders?
75 MR SAUNDERS: No, Your Honour. Those orders are consented to.
76 HIS HONOUR: Thank you. In view of the consent made by Mr Gelmi, I will make the orders as sought, Mr Raimondo.
77 MR RAIMONDO: If Your Honour please.
78 HIS HONOUR: Mr Gelmi, you may step from the dock and come to the Bar table. You will need to sign the community correction order.
79 Mr Raimondo, are there any other matters?
80 MR RAIMONDO: No, Your Honour.
81 HIS HONOUR: Mr Saunders?
82 MR SAUNDERS: No. Thank you, Your Honour.
83 HIS HONOUR: All right. I am grateful to both members of counsel.
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