Director of Public Prosecutions v Gioffre

[2019] VCC 473

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

AT GEELONG
CRIMINAL JURISDICTION

CR 18-02205

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON GIOFFRE

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Geelong
DATE OF HEARING:	5 April 2019
DATE OF SENTENCE:	5 April 2019
CASE MAY BE CITED AS:	DPP v Gioffre
MEDIUM NEUTRAL CITATION:	[2019] VCC 473

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MR D. HANNAN
For the Accused	MR A. DICKENSON

1HIS HONOUR:  Jason Gioffre, you are to be sentenced for one charge of trafficking a drug of dependence and one charge of possession of such a drug. 

2Applicable maximum sentences are 15 years' imprisonment for trafficking, and here,12 months' imprisonment for possession.  Accordingly, I have found that your possession of cannabis, Charge 2 on the indictment, was likely not for any purpose related to trafficking. 

3You pleaded guilty before me on 22 March.  When interviewed by police on 22 May 2018, you exercised your right to silence.   There was a contested committal on 26 October of that year, after which you pleaded not guilty.  I was told by your counsel, Mr Dickenson, that the main focus was upon the question of intention or not to traffic in a commercial quantity.  You offered to plead to simple trafficking.  The matter was listed for trial in this court and ultimately resolved on 19 February of this year on the basis of your plea to the lesser offence.  

4You receive the benefit of your plea of guilty, and the cooperation in that short history of the proceeding shows.   I bear in mind as to the timing of plea, your earlier offer to plead to trafficking and that the Crown has not proceeded on the more serious offence of trafficking in a commercial quantity.  Your plea has facilitated the interest of justice. 

5At your plea hearing,  which ran on 22 March, Ms Coombes for the Crown tendered a written prosecution opening, photographs of the drugs seized by police - sorry, I will state that better.  Ms Coombes for the Crown tendered a written prosecution opening and photographs of the drugs seized by police.   She also provided to me the sentence of you by Judge Mullaly in the County Court on 5 July 2013.  Mr Andrew Dickenson for you tendered the psychological report - I will put that better.  Mr Andrew Dickenson for you tendered today the psychological report of Dr Aaron Cunningham, dated 7 March 2019.  He provided a written outline of plea submissions. 

6I have also been directed to and provided with a number of so called comparative sentencing cases.

7The circumstances of your offending are set out in the tendered Crown opening, which is Exhibit A.  My own summary may be relatively short.  At about 12.30 - was it 12.30 in the afternoon?  I presume it was.

8MR HANNAN:  Yes.

9HIS HONOUR:  Thank you.  At about 12.30 in the afternoon of 22 May 2018 police intercepted a Commodore sedan near your home in Herne Hill, Geelong.  You were driver and only occupant.  It seems to me likely that you were under surveillance.  You were arrested.  At Geelong police station a small black pouch was discovered on your person.  It contained the following, relevant to trafficking a drug of dependence, Charge 1.   

10(1) Three clear bags with the crystallised form of methylamphetamine, 70.4 grams had over 80 per cent purity.  

11(2)  Another bag contained further smaller resellable bags.  

12(3)   A set of digital scales.

13Further analysis of the 70.4 grams showed 60 grams of pure methylamphetamine.  The legislative threshold for commercial quantity of methylamphetamine is 50 grams.  As I earlier stated, you are not to be sentenced for trafficking in a commercial quantity despite possession of that.  This relates to intention.  The accepted position is that you intended to traffic less than 50 grams;   that is. less than 50 grams was in your possession for the purpose of sale.

14I bear in mind that you are not to be sentenced for the more serious offence.  However, it must be seen that you possessed a substantial quantity for sale in the range of the legislative thresholds.  The simple trafficking quantity threshold is 3 grams. 

15A further search of your home revealed 84 grams of the drug of dependence, cannabis,  in a bag with other smaller, that is empty bags.  Despite this I have found that the cannabis was not possessed for any purpose related to trafficking and,  accordingly, the lesser maximum sentence of 12 months applies.   The trafficable quantity for cannabis is 250 grams.  The small quantity which allows for, amongst other things, a non-conviction sentence is 50 grams.

16There were other items found, for example, Cryovac bags and a measuring spoon which I see to be related to the trafficking in methylamphetamine. 

17You are now 32 years of age and await this sentence in remand custody.  You had an unsettled upbringing.  You were born in Sydney but, at three,  moved to Aubrey with your mother when she left your father.   The family returned to Sydney and your father played a role in your early life.  You describe your father as a hard worker and your mother as supportive of the children;  but also a problematic drinker.  Over time you lived with your father in Sydney and your mother in Queensland, New South Wales and Geelong and also at times with your paternal grandmother.  You are the eldest child having five half siblings to a number of different fathers.  Some of your stepfathers were violent.  Dr Cunningham states that both of your brothers have had trouble with the law.  Younger siblings have been subject to child protection orders.

18You left school after Year 10.  You have worked since in sheet metal fabrication, at a chicken factory, in security, shop fitting, and at a Melbourne cold store.  You were an apprentice bricklayer for about ten months.  Your ambition was to join the Australian Army.  Mr Dickenson's outline states that you failed the "psychological test".  Employment has been affected by the five year sentence of imprisonment imposed in 2013. 

19You have used drugs such as cannabis and alcohol from teenage.  However you came to drug dependence late, taking increasing amounts of ice amphetamine in 2011 to 2012 leading to arrest for the drug trafficking offending for which you were sentenced in July 2013. 

20You have two daughters from your only significant relationship,  which ran over seven years.  Your daughters are aged ten and eight.  Their mother, who presents as a prosocial person, does not restrict your access to them as I understand the family lives in the Geelong area. 

21In July 2013 Judge Mullaly sentenced you to a total effective sentence of five years, with a minimum term of two years and nine months for trafficking in methylamphetamine; but also possessing proceeds of crime. ($300,000 in cash) and a number of firearm offences which the judge associated at least indirectly with the drug trade.   The individual sentence for trafficking was three years.  Judge Mullaly found that you were a significant player in the supply of methylamphetamines in Geelong.  The amount of cash you possessed was relevant to this finding and what was found about the scale of your trafficking.  You had been arrested in December 2012 having just sold 1 ounce of the drug at 80 per cent purity.  It was alleged that you sold 10 to 14 ounces, 270 grams to 370 grams, over an approximate 3 week period. 

22Judge Mullaly noted that you were a user of ice.  Matters seen as favourable to you in terms of prospects for rehabilitation included the support then of your wife and your stated commitment to your children.  Although it was alleged that you had sold up to 350 grams of the drug, you were sentenced as here for trafficking, not trafficking in a commercial quantity.  This is your only prior conviction.

23Mr Dickenson described the circumstances of your release from that sentence.  This was in late 2017,  after having served the full term of five years.  You did not adjust well to what seems a relatively unsupported placement back into the community.  At first you lived with your mother and her children.  Attempts to obtain other accommodation for you did not come to be.  You began to use drugs again.  You left your mother's home in February 2018.  It is apparent that your decline into drug use continued.  You committed these offences in May of that year.

24Dr Cunningham diagnoses a depressive illness stemming from the abandonment and instability of your childhood. 

25Drug trafficking is a serious crime and attack upon the welfare of our community.  It attracts a maximum sentence of 15 years.  You have a highly relevant prior conviction.  Such circumstances make important sentencing considerations of deterrence, here both specific and general deterrence, your moral culpability, the need to sentence in a way to condemn and proportionately punish.  There must be a sentence of imprisonment, one of significant length.

26I also take into account matters which go to moderate that sentence.  They include the following.

27(1).  Your plea of guilty and cooperation.

28(2)   Your personal history and circumstances, which include those existing for you at the time of this offending,  and your psychological health.

29(3)  Mr Dickenson put that you have reasonable prospects for rehabilitation, pointing for example to your limited criminal history.  You have the motivation of wishing to rekindle and maintain a relationship with your children.  Before succumbing to drug dependence, you have shown yourself capable of consistent employment.  You are still in your early thirties.  Mr Dickenson also made the point that you have not hitherto had the benefit of a community based drug rehabilitation program.  However, your prior conviction is relevant.  You were sentenced in 2013 to three years for trafficking in circumstances which should be seen as at least comparable to the offence before me.  I bear in mind that the sentencing judge imposed significant cumulative sentences for other related offences.   You committed this offence only six months after release from a five year sentence.  I am obliged to be guarded about your rehabilitation.  Your prior conviction also makes more relevant the sentencing purpose of specific deterrence.  You are not to be punished again for your 2012, 2013 offending.  As stated I must be guarded about your prospects for rehabilitation; however, I do not discount them.  Much will depend on whether you can stay drug free.  I hope release and support upon parole helps you with this.

30Having considered what I see to be the relevant matters, I sentence you as follows. Stand up, please. On Charge 1, trafficking a drug of dependence, you are sentenced to four years' imprisonment; on Charge 2, possession of cannabis, you are sentenced to three months. That is a total effective sentence of four years' imprisonment. I set a minimum term before eligibility for parole of two years and six months. Under s.18 of the Sentencing Act I declare 318 days of pre-sentence detention.

31Had you not pleaded guilty, I would have imposed a sentence of six years with a minimum term of four years.  Are there any other orders sought?

32MR HANNAN:  Yes, disposal, Your Honour, and ‑ ‑ ‑

33HIS HONOUR:  Have you got those for me to sign?

34MR HANNAN:  Yes.

35HIS HONOUR:  Thank you.  The drugs and other related things.

36MR HANNAN:  Yes.

37HIS HONOUR:  Bags, scales, mobile phones, measuring spoons et cetera.  Are there any other ancillary orders?

38MR HANNAN:  No, Your Honour.

39HIS HONOUR:  All right.  Mr Gioffre can be taken into custody now.  Yes, thank you, Mr Dickenson, you're excused.

40MR DICKENSON:  As it please Your Honour.

41(At this stage the court proceeded with another matter.)

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