Director of Public Prosecutions v Madafferi
[2022] VCC 1817
•25 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02656
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH MADAFFERI |
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JUDGE: | HER HONOUR JUDGE Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 October 2022 | |
DATE OF SENTENCE: | 25 October 2022 | |
CASE MAY BE CITED AS: | DPP v MADAFFERI | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1817 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Bourbon | |
| For the Accused | Mr C. Baker |
HER HONOUR:
1Joseph Madaferri, you have pleaded guilty to two charges of trafficking in a drug of dependence and two charges of possession of a drug of dependence. You also agreed to and pleaded guilty to summary charges relating to unlicensed driving and possession of a prohibited weapon.
2The maximum sentence were outlined in the prosecution opening and I will not repeat them here.3The full circumstances of your offending were set out along with the chronology in the agreed prosecution opening of 6 May 2021, marked as Exhibit A on the plea.
Circumstances of the offending
4On 9 February 2021, investigators obtained telephone intercepts for a mobile number belonging to you and one belonging to Ms Cassar. Your phone activity was thereafter monitored by police until your arrest on 28 April 2021.
5Police monitored thousands of telephone calls and text messages on your phone. Approximately 341 of these calls and text messages related to the sale of drugs, while 133 calls and text messages specifically related to the sale of methylamphetamine and 1,4-Butanediol.
6The telephone intercept material shows that you were regularly engaged in verbal or text message conversations concerning the sale of methylamphetamine and 1,4-Butanediol throughout the period between 9 February 2021 and 25 April 2021.
7You regularly used code in your communications with others, as outlined in the prosecution opening at paragraph [12].
8The total amounts of methylamphetamine and 1,4-Butanediol that were trafficked by you, as disclosed in the telephone intercept material, was:
(a) 104.05 grams of methylamphetamine; and
(b) 2,995 millilitres of 1,4-Butanediol.
9None of the methylamphetamine, the subject of the calls, was seized by police. As such, the purity of it cannot be determined.
10As part of a controlled operation, Victoria Police commenced making evidentiary purchases of methylamphetamine and 1,4-Butanediol from you through two covert operatives.
11Covert Operative 331 and Covert Operative 324 purchased methylamphetamine and 1,4-Butanediol from you on a total of four occasions, briefly as follows:
(a) On 25 March 2021, you supplied 1.7 grams of methylamphetamine. The clear crystal substance was later analysed and found to be methylamphetamine, weighing 1.7 grams with an approximate purity of 85 per cent.
(b) On 29 March 2021 you supplied a Ziploc bag containing 7 grams of the white crystal substance and bottle containing the liquid substance. The covert operatives paid you $1,525 for both items.
(i)The clear crystal substance was later analysed and found to be methylamphetamine, weighing 7 grams with an approximate purity of 88 per cent.
(ii)The liquid substance was also later analysed and was confirmed to be 49 millilitres of 1,4-Butanediol.
(c) On 7 April 2021, Cover Operative 331 called you and said what he wanted and that was discussed as indicated in the Crown opening.
(i)You supplied a Ziploc bag containing the white crystal substance and a bottle containing the liquid substance, the 1,4 Butanediol. The covert operative paid you $4,925 for both items.
(ii)The clear crystal substance was later analysed and found to be methylamphetamine, weighing 27.9 grams with an approximate purity of 83 per cent.
(iii)The liquid substance was also analysed and confirmed to be 237.3 millilitres of 1,4- Butanediol.
(d) On 14 April 2021, the coverts contacted you again in relation to the supply of drugs. You ended up meeting them and they paid you $6,300 for methylamphetamine.
(i)The clear crystal substance in both Ziploc bags was later analysed and found to be methylamphetamine.
(ii)The first Ziploc bag contained 13.9 grams with an approximate purity of 86 per cent.
(iii)The second Ziploc bag contained 28 grams with an approximate purity of 83 per cent.
12The drive unlicenced charges represent the two occasions where you drove to meet the undercover operatives, but you were unlicenced at the time.
13In total, you sold the following to the covert operatives:
(a) 78.5 grams of mixed methylamphetamine; and
(b) 286.3 millilitres of 1,4-Butanediol.
14At approximately 3:45 pm on 28 April 2021, police investigators arrived at the Green Gully Soccer Club in Keilor Downs, where they found your VW Golf. Investigators entered the pokies area, located you and arrested you.
15Your vehicle was then searched by investigators, who seized a number of items as outlined at paragraph [58] of the prosecution opening, including:
(a) One glass smoking pipe;
(b) Two green coloured tablets;
(c) Two snap lock bags, each containing a clear crystal substance;
(d) Two clear syringe plungers with white liquid residue.
16The clear crystal substance that was seized from your satchel was later analysed and was found to be methylamphetamine, weighing 24.2 grams with a purity of 90 per cent. This forms part of Charge 1.
17The green coloured tablets were also analysed and were found to be MDMA, weighing 0.9 grams (Charge 3 – possession of a drug of dependence).
18While you were being arrested, police also executed a search warrant at your home.
19Ms Cassar was inside the house when police executed that warrant. She was also then arrested and taken to the police station and interviewed.
20Police searched the house and seized a number of items as outlined in the prosecution opening at paragraph [63] including:
(a) One green coloured tablet;
(b) Ziploc bags containing clear crystal substance, a white rock substance, green vegetable matter, seven pink tablets, numerous capsules of white powder and one white tablet.
(c) One conducted energy device;
(d) One clear bottle with a purple lid containing a clear liquid substance;
(e) One plastic bag containing brown crystals;
21The energy device that was seized in the house is a prohibited weapon and that is the subject of the summary Charge 17.
22The green coloured tablet, the brown crystals, and the seven purple tablets were all later analysed, found to be MDMA, weighing a combined amount of 4.9 grams, that is the subject of Charge 4.
23The clear crystal substance that was seized from the house was also analysed and found to be methylamphetamine. I note that that particular drug located does not form part of Charge 1.
24The total amount of methylamphetamine and 1,4 Butanediol trafficked are outlined in the tables in the prosecution opening and total 206.75 grams of methamphetamine, 87.72 grams being pure and a total of 3,329.3 millilitres of 1,4-Butanediol.
25Although the amounts of pure methylamphetamine and 1,4 Butanediol that were trafficked by you were in excess of the 'commercial quantity' thresholds in respect of each drug, it is conceded by the Crown that in your case it cannot be proven beyond reasonable doubt that you intended to traffick in amounts exceeding the respective commercial quantities.
26That, I repeat Mr Madafferi, is a summary of the prosecution opening.
Gravity of your offending
27The offence of trafficking in a drug of dependence is inherently serious, as demonstrated by the maximum penalty that Parliament has prescribed. Denunciation and general deterrence are important sentencing considerations.
28The sentencing regime for trafficking offences is quantity-based. That is, the legislature has fixed the maximum penalties by reference to specified quantitative thresholds[1]. It follows therefore that quantity is a highly relevant consideration in sentencing for trafficking offences. There are also other important indicators of offence seriousness, such as, your role in the trafficking, the duration of the offending and the motivation for your involvement.
[1] Gregory (a pseudonym) v The Queen [2021] VSCA 211.
29Here, you trafficked at least 1.75 times the commercial quantity of pure methylamphetamine. You also trafficked approximately 1.66 times the commercial quantity of 1,4 Butanediol. The offending period across Charges 1 and 2 spans approximately two and a half months. During that time you regularly engaged in drug trafficking activities. While the sales to the covert operatives indicate that you kept a reasonably large stock of drugs to conduct transactions, it was accepted, and I accept, that mostly you conducted smaller transactions, as indicated by the text messages.
30In relation to your role, you were conducting your own drug trafficking business. As to your motivation the prosecution accept that drug use may have been a factor in the genesis of your drug trafficking. However, they submit that your motivation went beyond seeking to fund your own drug habit, as indicated by the scale of your business and the information apparently provided to CISP as to having ceased using illicit substances six weeks prior to your remand.
31The prosecution submit, and I accept, that your offending as captured by Charges 1 and 2, represent serious examples of trafficking simpliciter offences. In relation to your possession of MDMA it is accepted by the prosecution that the quantity relating to each charge was small.
32In relation to your trafficking, your counsel, Mr Baker, submits that it occurred within the context of your drug use. It was not submitted that your offending was solely to fund your own addiction and that is relevant to an assessment of your moral culpability. Instead, your Counsel submits, and I accept, that your addiction is a significant factor which explains how you got into this business - your drug use increased, which caused you to lose your employment at the time and you then became the seller (initially at least) to fund your own habit.
Plea of guilty
33I accept that you entered a plea of guilty at the earliest reasonable opportunity. Earlier committal mentions were required due to the voluminous materials involved and for an appropriate resolution to be reached. You are entitled, and will receive, a substantial benefit for the utilitarian value of your plea. I accept that you have shown remorse, assumed responsibility and a willingness to facilitate the course of justice. I also recognise that the utilitarian value of your plea is heightened in light of Worboyes considerations and that is a reference to it being entered during the COVID-19 pandemic.
Personal circumstances
34Your personal circumstances were outlined by Mr Baker and in a detailed personal chronology which was filed on your behalf.
35Briefly, you are 44 years of age, 42 at the time of your offending. You were born in Melbourne and have one older sister as well as a younger brother and sister. You lived with your parents and it appears that you were provided for as a child. You completed Year 12 and commenced working in the family fruit and vegetable business. You remained doing that until 2010 and the business was quite successful.
36Following the sale of the business you worked in a friends supermarket for the next three to four years. Then using your knowledge of the industry, you worked at a wholesale market for the next 18 months. You are currently employed on a full time basis by Sheriff’'s Quality Fruit and Vegies at South Melbourne Market having commenced there in around August or September 2021. Save for a period of time in the lead up to the offending before this Court, you have always been gainfully employed.
37In 2010 you commenced a relationship and married but that relationship broke down in around March 2014. Shortly after, you commenced a relationship with Ms Cassar. The relationship is ongoing, and I note that she has also attended Court in support of you. Together you have a 7 year old daughter and there has been intervention by the Department of Fairness and Housing. Your daughter has recently been transitioned from the care of your parents and is now residing with Ms Cassar, her mother, on a full time basis.
38You have apparently not been diagnosed with any mental health issues or illnesses in the past and you are currently not prescribed any medication. Over the last 18 months you have noted an increase in your mood, which has coincided with you ceasing illicit drug use, obtaining stable employment, routine and direction in your life. You have also gained, I was told, approximately 25 kilos in weight which you attribute to healthier living and healthier choices.
39You first used recreational drugs in your late 20s. It was not until 2014 when your marriage broken down that you became a consistent drug user and that methylamphetamine became a real issue for you. This correlates with your first contact with the criminal justice system, when you were approximately 37 years of age.
40You have a limited though relevant prior criminal history. You have prior convictions or findings of guilty for drug possession offences and for driving suspended/disqualified or unlicenced. On two previous occasions you have failed to comply with a community corrections order. Importantly, you do not have a prior history for trafficking in drugs.
Prospects of rehabilitation
41The main focus of the plea on your behalf was on the progress you have made since your arrest and initial remand. On 28 April 2021 you were remanded in custody until you were bailed on 30 June 2021. You have a total of 64 days in pre-sentence detention on this matter. It was submitted, and I accept and take into account, that your period on remand was more onerous because of the conditions of custody due to Covid restrictions. You were quarantined for a period of 14 days upon your reception. This also represents the longest period you have experienced in custody and I accept, from your subsequent conduct, that it appears to have had a salutary impact.
42You have made considerable progress since your release on bail. You are one of the more successful participants in the CISP program. The final progress report indicates that you did not miss an appointment, and that you remained abstinent from illicit substances during this period. You were assessed by ACSO COATS and referred for a standard episode of counselling. During these sessions it was reported that you displayed insight into your offending and your further goals relating to reobtaining a driver's licence, engaging in employment and reunification with your child. You were assessed as a willing participant of case management and open to treatment and support avenues.
43You have also made efforts and attempts to regain contact and custody of your daughter. As noted previously, she lives with Ms Cassar now and the two of you continue a relationship, although presently live separately. It is ultimately hoped that you will be able to re-join the family unit. The Department has had you complete a large number of urine screens. In a report of 10 December 2021, the Department recorded that in a period of four months since 20 August 2021, you had provided 28 clean urine screens and no positive ones. This demonstrates that you have shown an abstinence from illicit substances following your exit from the CISP program. The prosecution submit that there is limited information regarding your ongoing rehabilitation since December of last year, but they accept on the evidence, you present with reasonable prospects.
44Since late 2021 you have secured full time employment, as I have already noted. You have been working from Tuesday to Sunday usually commencing at 5 am until 12 pm and sometimes they are full days. You continued to provide urine screens until March of this year, up to three times a week. Apparently, no further urine screens were required. In recent months, you have prioritised your work. In respect of your daughter, there is currently a six month preservation order in place and if there are no issues at the end of this, it is anticipated that the Department will close their case. It is your understanding that you will be able to continue access with your daughter following that.
45You have a close relationship with your parents and siblings. I also received testimonials from family and friends who refer to the significant changes you have made in your life since 2021. Your friend of some 15 years, Peter Spanos, says you have now entered a positive routine of work and family life. Your sister, Michelle, refers to the extreme changes you have made since your release from custody and the better choices you are now making for yourself.
46In all the circumstances, Mr Madafferi, I accept that you present with reasonably good prospects of rehabilitation. I agree with the prosecution however that this largely depends on whether you can remain abstinent from drugs into the future.
Sentencing considerations
47In sentencing you I must have regard to a range of sentencing principles and factors. I need to impose a sentence which reflects just punishment, denunciation, community protection and general deterrence. Some weight must also be given to specific deterrence though I accept that the weight attaching to this factor can be moderated having regard to your conduct since being granted bail. I must also impose a sentence that promotes your rehabilitation, though clearly this is not the only consideration. I need to also balance your personal circumstances with the circumstances of your offending.
48I am required to take into account further the principles of parsimony, proportionality and totality and the factors as outlined in s.5 of the Sentencing Act, where relevant in your case. I have considered current sentencing practices and the cases I was provided with, mindful that each case must be considered in light of its own particular circumstances. When considering current sentencing practices and the sentences imposed in other cases, the principal factors of comparison are your role, the period of offending, that you have pleaded guilty, and the weight of the drugs involved by ratio to the commercial quantity threshold. They provide useful guidance and pronunciation of general principles but many of the cases are distinguishable from your case, as indeed they are from one another.
49On your behalf it was submitted that a combined sentence of imprisonment and a community corrections order ('CCO') was appropriate and that any term of imprisonment should not exceed the 64 days that you have already served. The prosecution accepts such a sentence is open however submit that it would require the imposition of a term of imprisonment that exceeds the period that you have served on remand.
50I had you assessed for an order. You were assessed as being low risk of re-offending and otherwise assessed as suitable for such an order. It was noted that you had contravened two previous orders and successfully completed one. You confirmed your full-time employment and your ability to co-manage your employment commitments with those of a community corrections order. You displayed regret and remorse for your offending. It noted your CISP compliance and that you had also completed 10 sessions with a psychologist through the Positive Psychology Centre in Mornington. You reported being abstinent from drugs for 18 months. The recommendation was that you be the subject of community work only order. As you were assessed as a low risk of general re-offending minimal order conditions were recommended.
51I have been guided by the Court of Appeal in Boulton’s case. In determining whether to sentence an offender to a community corrections order, the court should first assess the objective nature and gravity of the offence and the moral culpability of the offender. The court should then consider whether:
(a) the crime as so assessed is so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment; or
(b) a CCO, either alone or in conjunction with a sentence of imprisonment, would satisfy the requirements of just punishment.
52In all the circumstances, and balancing the best I can, the nature and gravity of the circumstances of your offending, your moral culpability, your previous history and the factors in your favour, I consider that a short term of imprisonment, combined with a lengthy community corrections order can address all relevant sentencing considerations and satisfy the requirements of just punishment. In light of your prior criminal history for drug use; your previous history of drug use, the nature of your present offending and its overall general context, as I raised with the parties this morning, I do not propose to make a work only order.
53The CCO I will impose I intend it to be highly punitive, and this will be reflected in both its length and its conditions. As the Court stated in Boulton at [31]:
‘A CCO is punitive in nature and will operate punitively for every day of its duration. The sentencing court can, for the purposes of punishment, impose a CCO for a duration extending beyond the period assessed as necessary to achieve the rehabilitative purposes of the order.
54In relation to the charges therefore, Mr Madaferri, I am going to sentence you and I will ask you at this stage to stand please.
55Weighing up all those factors that I have referred to, including the seriousness of your offending, in relation to Charges 1 and 2, you are convicted. You are sentenced to 64 days' imprisonment and you are placed on a community corrections order for a period of 2 years and 10 months. The conditions of the community correction order include
(a) 300 hours of unpaid community work over that two year and 10 month period
(b) Assessment and treatment for drug use
(c) Offending behaviour programs, to address the risk of re-offending, and
(d) Supervision by the Office of Corrections.
56In relation to the 300 hours of unpaid community work, I am prepared to offset 100 hours of community work against any treatment or programs that you undertake. What that means, Mr Madafferi, is if you do 100 hours of treatment in relation to drug use – and I know that you have not used for 18 months but drug addiction is often involves a lot of work to properly and fully address – but if you do 100 hours of treatment that will be offset against the community work hours that I have set. It is 300 hours. It is a large amount, it is intended to be a large amount, but you have over a period of two years and 10 months to complete it. Do you understand?
57Now, there are core conditions that apply to an order. You are going to get a copy of it in a moment. I will just go through the additional charges but the core conditions include having to go into I think it is Sunshine Corrections within two working days that you have to attend. Having to advise Corrections of any change of address or work. Needing their permission before you travel interstate and so forth. It will be clear from the document, all right. And once you receive it and once you have read it, I am going to ask you whether you are prepared to consent to it, all right.
58In relation to Charges 3 and 4, possess drug of dependence, I accept that the lower sentencing regime applies to these charges. On each, you are convicted and sentenced to 30 days' imprisonment and I order that they be served concurrently with each other and concurrent with the base sentence, imposed on Charges 1 and 2.
59On the summary charge of possess prohibited weapon you are convicted and fined $300. On Charges 17 and 18, which are the unlicensed driving charges, I am going to convict and fine you an aggregate amount of $600. And I note there also that I am – in terms of the amounts that I have fixed – I am taking into account the fact that you are employed on a full-time basis, but also totality – I have had regard to the other sentences I have imposed, to moderate some of those fines.
60In relation to your licence, Mr Madafferi, I have the discretion to interfere with it. And that is right, Mr Bourbon, it is discretionary, is that so?
61MR BOURBON: Yes, that is right. Yes, Your Honour.
62HER HONOUR: In light of your driving history I have given serious consideration to doing so but ultimately I have decided not to. I was told that in early 2021 you successfully applied to get your licence back and you are now fully licenced. This assists you in getting from Kings Park to the South Melbourne market where you work and where you sometimes start work at 4.30 am. So I am not going to interfere with your licence.
63Pursuant to s18 of the Sentencing Act I declare that you have served a period of 64 days in pre-sentence detention.
64Pursuant to s6AAA but for plea of guilty I indicate that I would have sentenced you to a term of imprisonment of some one year and 9 months imprisonment with a non-parole period of 12 months. So that indicates, Mr Madafferi, that you have received a full and significant discount for (a), your early plea of guilty; and also its heightened utilitarian impact and effect because of Covid, all right.
65I make the forfeiture and disposal orders in the terms sought and note that they were unopposed.
66Are there any other orders sought?
67MR BAKER: No, Your Honour.
68HER HONOUR: All right. Mr Madafferi, in a moment I will just check – and I note, thank you for the reminder – I am thanking my associate there. I am imposing in relation to Charges 1 and 2 an aggregate sentence as indicated, because I consider that Charges 1 and 2 really arise, as was accepted by the parties, on the basis of the same set of circumstances and involves, in terms of objective gravity, similar considerations. So that is the reason I have done that and the effect of that aggregate sentence is that on Charges 1 and 2, as I have indicated, it is an aggregate amount of the term of imprisonment and then effectively a community corrections order on both of those as well. All right, do you understand? All right.
69Is the order ready? Thank you. Would you, Mr Baker or your instructor, Mr Condello, like to approach Mr Madafferi so that he can check that, read through it with him please, and I will ask him at the end of that whether he consents, then he will be asked to sign.
70All right, Mr Madafferi, so you have signed that, indicating that you understand the conditions and you consent. You will also understand and hopefully appreciate, because you have been on orders in the past, Mr Madafferi, if you breach the order then you will come back before me for breach and you will be re-sentenced in relation to the original offences, and you will be at risk of receiving a term of imprisonment, all right.
71So it seems to me, before I adjourn in your matter, it seems to me that you are obviously in full-time work, you have indicated you can co-manage that and if you work with Corrections, I am sure that their design is not going to be to jeapordise your employment and that is indicated in the report I received, all right. But I must stress to you the importance of complying with this order, all right. All right. Nothing further?
72COUNSEL: No, Your Honour.
73HER HONOUR: I will adjourn the Court. I will sign that before we adjourn and then you will both receive copies, thank you.
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