Director of Public Prosecutions v Mallia

[2021] VCC 521

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-20-01704

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW MALLIA

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2021
DATE OF SENTENCE:	26 April 2021
CASE MAY BE CITED AS:	DPP v Mallia
MEDIUM NEUTRAL CITATION:	[2022] VCC 521

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW

Catchwords:   Possess a traffickable quantity of firearms; Possess a drug of dependence; Subsidiary role in offending; Mitigating subjective circumstances; Plea of guilty; Remorse.

Legislation Cited:   Drugs Poisons and Controlled Substances Act 1981; Firearms Act 1996; Sentencing Act 1991.

Sentence:Total effective sentence of 13 months imprisonment, 12 month CCO with supervision, drug and alcohol treatment, judicial monitoring.

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APPEARANCES:	Counsel	Solicitors
For the Director	Ms M. Zammit	Office of Public Prosecutions
For the Accused	Ms A. Dulcie	Nelson Brown Legal

HIS HONOUR:

Introduction

1Matthew  Mallia, you have pleaded guilty to one charge of possessing a traffickable quantity of firearms and two charges of possessing a drug of dependence. You have also pleaded guilty to five related summary offences comprising one charge of possessing cartridge ammunition, one charge of committing an indictable offence whilst on bail, two charges of dealing with property suspected to have been the proceeds of crime and one charge of driving whilst disqualified.

2

Ms Zammit, who appeared on behalf of the Director of Public Prosecutions, tendered and read to the court a Summary of Prosecution Opening for Plea.

Ms Dulcie, who appeared on your behalf, accepted that summary as accurate and that it could form the factual basis for sentence. What follows as to the circumstances of your offending is largely based on that summary.

Circumstances of offending

3

In early 2020, you were living at 2 Lush Court, Altona Meadows with your

co-accused Chantelle Salazar and her grandmother.

4On 5 March 2020, at about 8.54am, police commenced surveillance of that address. At 9.10am, you were observed leaving that address, getting into a white Toyota Yaris and driving off. The car was intercepted and inquiries revealed you to be the holder of a disqualified Victorian driver's licence (Summary Charge 25: driving whilst disqualified). It appears that you were intending on travelling to Melbourne Magistrates' Court in order to answer your bail in respect other summary charges.

5Investigators returned to the address and executed search warrants pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and s 146 of the Firearms Act 1996 (Vic). Present at the address were yourself, Ms Salazar, her grandmother and her grandmother's friend.

6During the execution of the search warrant, investigators located and seized the following items in your and Ms Salazar's bedroom:

·A .22 calibre rifle, a lever action shotgun with a modified stock and barrel and a gel blaster rifle firearm (Charge 1 on the indictment);

·

Assorted ammunition inside a coin tin, 13 '25' ammunition rounds,

12 shotgun shells and 70 rounds of rimfire ammunition were also located (Summary Charge 6: possession of cartridge ammunition without a licence);

·A firearm bolt, a firearm barrel, a firearm stock, and an improvised/homemade handgun;

·Assorted letters and mail in the name of various persons and 10 assorted cards in the name of various persons (Summary Charge 19: dealing with property suspected of being the proceeds of crime);

·Inside a black handbag believed to belong to Ms Salazar, a clear resealable bag containing a crystal substance, together with a Victorian driver's licence in the name of another person, two bank cards in the name of other persons, a blank Victorian driver's licence, and $6680 in cash (Summary Charge 18 being dealing with property suspected of being the proceeds of crime); and

·An assortment of clear resealable bags containing a white substance, crystalline substance, 10 white pills, four red capsules, 12 blue pills, glass bottles containing 1,4 Butanediol, oxycontin, Valium and Xanax tablets, morphine liquid ampoules. A further assortment of pills, capsules and white substances were also seized.

1. Subsequent analysis revealed that you had jointly possessed the following quantities of drugs:

   ·23.2 grams of methylamphetamine;

   ·780.8 grams of 1,4 Butanediol;

   ·2.0 grams of amphetamine, being 12 tablets; and

   ·5.8 grams of MDMA consisting of 16 tablets and capsules.

   8The possession of those drugs form the basis of Charge 2 on the indictment: possession of drugs of dependence.

   9The following quantities of prescription drugs were also identified:

   ·85 Valium tablets;

   ·5 morphine ampoules;

   ·28 oxycontin tablets; and

   ·50 diazepam tablets.

   10The possession of those drugs forms the basis of Charge 3 on the indictment: possession of drugs of dependence.

   11You and Ms Salazar were arrested and interviewed at Altona North police station. During your interview you exercised your right not to comment on the allegations.

   12At the time of the commission of these offences you were subject to two undertakings of bail in respect of other matters (Summary Charge 24: commit an indictable offence whilst on bail).

   Procedural history

   13You were arrested and remanded in custody on 5 March 2020. The committal mention was set down for 2 June 2020, however, that hearing was adjourned because the forensic analysis of the substances seized needed to be completed.

   14On 9 October 2020, the prosecution put forward a proposal to resolve the proceedings in respect of both you and your co-accused. You accepted that proposal and at a special mention on 13 October 2020, you indicated that you were willing to plead guilty to the charges that form this indictment and the related summary offences. Your co-accused's matter was to proceed to trial, but I was informed it had recently resolved.

   15You made an application for summary jurisdiction on 30 November 2020, which was refused. On 4 December 2020, you formally pleaded guilty to these matters in the Magistrates' Court and the plea hearing was listed to proceed before this Court on 16 April 2021.

   16Having regard to the concessions made by the prosecution in putting forward the resolution proposal, I am prepared to treat your plea of guilty as having been entered at the earliest practicable opportunity. In those circumstances, your plea of guilty will attract a substantial discount on the sentence that would otherwise have been imposed.

   Personal history

   17Turning to your personal history. You were born on 5 August 1993 and you were 26 years of age at the time of the offending. You are now 27.

   18You are the middle of five children from different fathers. You appear to have had a very difficult upbringing in the setting of your mother's substance abuse, family violence and sexual abuse. Your father left when you were six months old. Your mother subsequently had multiple partners, some of whom were verbally and physically abusive towards you. You explained to your assessing neuropsychologist that you were also sexually abused by an older male who was the son of one of your mother's partners.

   19In primary school you were moved into foster care, before eventually moving in with your grandfather and then returning to live with your mother. Your early schooling was disrupted by your move to foster care and, as a result, you attended three different primary schools. You were never suspended or expelled, however. You struggled with literacy and it appears that you did not receive any specialist support for your learning difficulties. You were more adept at practical subjects and when you later attended TAFE you were able to obtain the necessary certificates as part of your chef's apprenticeship.

   20Your own substance abuse began at 15-16 years of age and when your cannabis use became problematic, you left school at the end of year 10 and moved out of home to live with friends. You say you ceased using cannabis when you obtained your driver's licence. You completed a Certificate II in commercial cookery at TAFE and embarked on a four-year apprenticeship at the Deer Park Club Bistro. You left that apprenticeship three months shy of completing it to move in with your mother, who had developed liver cirrhosis and required support. Your mother passed away in 2017.

   21In addition to dealing with that loss, you found your fast-paced job as a chef quite stressful. You had worked as a chef in a number of short-term positions at various hospitality venues and during this time you began using amphetamines and ice, having been introduced to those substances by co-workers. You eventually developed a severe drug addiction that overtook your life. Once you reached the age of 24, you were regularly using significant quantities of GHB in conjunction with ice. You would additionally abuse unprescribed benzodiazepines and opioid analgesics.

   22You have been estranged from all of your family since your mother's death and have had limited support. Prior to your arrest, you were working two days a week washing trucks.

   23You have never married. You have a four-year-old son whom you rarely see due to estrangement from his mother.

   24You have been in a relationship with Chantelle Salazar, your co-accused, since 2018. Ms Salazar is also a drug user and, whilst you have instructed your legal practitioner that you would like your relationship with her to continue, you say that that will be contingent on your both being drug-free and engaging in treatment and rehabilitation. You have, it was said, the support of Ms Salazar's parents in this respect.

   25Given your background, your criminal history is not as extensive as might be expected. Your first appearance arises in March 2018 when you were 24 years of age and related to driving, drug and dishonesty offending. You were placed on a 12-month CCO which, as I understand it, is now in breach. In January 2019, you were fined for some driving offences and shop stealing. I note also that you had summary matters pending when you were arrested for these matters.

   26While in custody, you have been subject to the restrictive regime imposed to deal with the pandemic. Nevertheless, you have managed to complete two Certificates of Achievement, titled 'Release Related Harm Reduction' and 'Ice and Me'. You have been tested infrequently for drug use with negative results. You have also written a letter to the court, which I have taken into account.

   Defence submissions

   27In respect of the offending, Ms Dulcie submitted that the possession of the firearms came about as a result of your partner taking the guns as payment for drugs whilst trafficking. It was said that your possession was on the basis of complicity only and you were not a party to the drug trafficking as your charges reflect. It was further submitted that there was no evidence that the firearms had been fired or discharged and no evidence as to whether the ammunition located in the room was compatible with those firearms.

   28

   I should indicate now, that ordinarily I would hesitate to accept a submission to the effect that a co-offender was largely responsible for the commission of an offence in the absence of affirmative evidence and/or hearing submissions on behalf of the co-offender. However, the prosecutor Ms Zammit informed the court that

   
   

   Ms Salazar's matter had resolved on a factual basis consistent with Ms Dulcie's submissions. I was told Ms Salazar would be pleading guilty to trafficking charges involving those items. By contrast, you have not been indicted on that basis.

   29In those circumstances, I am prepared to accept that your liability for possession of the three firearms was derivative and that you could not be dealt with on the basis that you intended to use the firearms and ammunition for further criminal activity.

   30It was also submitted that the state in which your bedroom was found by police as depicted in the photographs tended to confirm that you had a heavy drug addiction.[1]

   [1] Defence submissions on plea, paragraph [6](s).

   31In addition to your plea of guilty, it was said you had demonstrated remorse and that you had positive prospects for rehabilitation. particularly when regard is had to the fact that you were 26 at the time of the offending.

   32You were assessed by Dr Sara Fratti, a neuropsychologist, and Ms Dulcie relied upon her report of 1 April 2021. Dr Fratti was asked to provide an opinion as to whether you suffered from some form of acquired brain injury or other mental health condition. And at paragraph 43 of her report, Dr Fratti states:

   On the basis of the available background information, together with current testing results, Mr  Mallia's neuropsychological profile is not consistent with an acquired brain injury due to substance abuse or any other causes. His skills have been shown to be largely intact. Indeed, his performances on tasks, sensitive to substance use, that is, memory, speed or professing and executive functions, were as good as those of his age-matched peers in the general population average range. It must be noted that, being in a controlled environment without access to drugs for more than a year, has probably contributed to an amelioration of Mr  Mallia's cognition.

   33And at paragraph 46 Dr Fratti states:

   His neuropsychology profile is also inconsistent with a diagnosis of intellectual disability, since his full-scale IQ score of 86 is well above the critical threshold for a diagnosis to be warranted. Having said that, Mr  Mallia does present with limited literacy impacting on his verbal comprehension. In my opinion, he meets DSM-IV criteria for a specific learning disorder with impairment in reading, that is, dyslexia, and in written expression. Of note, this is a neurodevelopmental condition that do not fall under the ABI diagnostic category. The typical onset of a learning disorder is during the years of formal schooling and is characterised by persistent difficulty with learning foundational academic skills. Mr  Mallia's learning disorder can be considered of mild in severity since it has not precluded him to function in daily life and, more broadly, in the community. On assessment, Mr  Mallia showed that he has the capacity to compensate his verbal deficits when offered practical strategies, additional structure and contextual information.

   34As to your prospects, Dr Fratti further stated at paragraph 49 and 50:

   I would like to comment that treating Mr  Mallia's disordered substance use would seem especially important in terms of reducing his risk of relapse and recidivism. As such, he would benefit from medical review with an addiction medicine specialist and drug and alcohol counselling at the time of his eventual release back into the community to help minimise the chances of relapse to substance misuse. Mr  Mallia seemed genuinely regretful for his criminal behaviours and showed good insight into his current circumstances.

   His ability to succeed would appear to be strictly contingent upon his motivation to engage in property AOD therapeutic support. The provision of a safe living environment, a suitable stable employment and meaningful activities with positive peers will be equally important to minimise risk of relapse and reoffending. Forensic psychiatric and psychological evaluation would be beneficial in further developing an appropriate treatment plan.

   35

   Finally, Ms Dulcie accepted that your offending warranted a term of imprisonment but that any such term should now be imposed in combination with a community correction order under s 44 of the Sentencing Act 1991 (Vic), taking into account

   
   

   418 days of pre-sentence detention you have already served.

   Prosecution submissions

   36On behalf of the Crown, Ms Zammit contended that although each of the indictable charges filed against you was in itself serious, the overall gravity of the offending was significantly increased once the quantity of firearms, ammunition, drugs and property suspected to have been the proceeds of crime was jointly considered.

   37It was submitted that you are a prohibited person under the Firearms Act, and that as you were subject to the community correction order this was an aggravating feature of the offending. It was also not insignificant that you had relevant prior convictions.

   38It was submitted by the prosecutor that your prospects for rehabilitation should be seen as guarded, particularly since you appear to want to pursue your relationship with Ms Salazar who has had her own difficulties with drugs.

   39However, having regard to the substantial period of time already spent in custody, it was conceded that a sentence involving the imposition of a term of imprisonment in combination with a community correction order was open. This was expressed in Ms Zammit's helpful written submissions was as follows:

   Given the circumstances of the offending in this case together with the personal circumstances of Mr  Mallia, it is respectfully submitted that a combination sentence is within range for this offending, given that the court can impose up to one year imprisonment in addition to the 407 days of pre-sentence detention available.

   Alternatively, the court could impose a sentence the includes a non-parole period in this matter.

   However, it is the prosecution view that a sentence that provides for supervision and treatment for drug addiction may be the more effective way to assist in Mr  Mallia's rehabilitation and thereby protecting the community. It is submitted that a combination sentence would at least provide a guarantee that Mr  Mallia would be supervised for whatever period of time the court deems fit after his release from custody.

   Consideration

   40In considering these submissions, I should make it clear that the illegal acquisition of firearms in any circumstances must be viewed very seriously by our courts, having regard to the prevalence of illegal firearms and the potential they have to unleash serious criminal violence. The setting in which you jointly possessed these guns is no exception, and whilst I accept that your possession was derivative and there is no evidence that you intended to use or traffic these guns, you were nonetheless a prohibited person for the purposes of the Firearms Act and your actions still merit a significant term of imprisonment.

   41I further accept Ms Zammit's submission that once the scope of your offending is appreciated, it is fairly characterised as very serious. I should also indicate that I am not satisfied that your possession of the drugs was not for a purpose related to trafficking, and accordingly, the higher maximum penalty of five years imprisonment will apply to Charges 2 and 3 on the indictment.

   42That said, you have had a difficult upbringing which has afforded you little in the way of opportunity. Despite this, for most of your youth and young adulthood you led a productive life until you succumbed to drug addiction. In your case, that is a relatively recent phenomenon and, I hope, not entrenched. You have had more than a year in custody to reflect on where your life is heading and I am persuaded by your counsel, and by what I regard as the responsible position taken by the prosecution, that supervised release offers the best hope for preventing recidivism and securing the longer-term interests of the community.

   43In coming to that conclusion, I have taken into account your plea of guilty, the fact that you appear to have applied yourself to your rehabilitation, the indications of remorse and the findings of Dr Fratti. With that in mind, I had you assessed to determine your suitability to undertake a CCO. The assessing report suggests that you are at a high risk of reoffending but is otherwise positive.

   Sentence

   44Taking all relevant matters into account, you will be sentences as follows:

   ·On Charge 1, possess traffickable quantity of firearms, you will be convicted and sentenced to 12 months imprisonment

   ·On Charge 2, possess drug of dependence, you will be convicted and sentenced to four months imprisonment

   ·On Charge 3, possess drug of dependence, you will be convicted and sentenced to one month imprisonment

   ·On Summary Charge 6, possess cartridge ammunition without a licence, you will be convicted and fined $500

   ·On Summary Charge 18, dealing with property suspected of being the proceeds of crime, you will be convicted and sentenced to one month imprisonment

   ·On Summary Charge 19, dealing with property suspected of being the proceeds of crime, you will be convicted and fined $400

   ·On Summary Charge 24, commit an indictable offence on bail, you will be convicted and discharged

   ·On Summary Charge 25, driving whilst disqualified, you will be convicted and sentenced to one month imprisonment

   45

   I will order that one month of the sentence imposed on Charge 2 on the indictment be served cumulatively on the sentence imposed on Charge 1, and that all other sentences be served concurrently rendering a total effective sentence of

   
   

   13 months imprisonment. I will further order that, with your consent, you be placed on a community correction order in respect of Charge 1, 2 and 3 on the indictment and that that community correction order will be for a period of 12 months with the following conditions:

   (1) that you be subject to supervision

   (2) that you undertake treatment for alcohol and drug abuse and

   (3) that you be subject to judicial monitoring.

   46I will declare, pursuant to s 18 of the Sentencing Act, that you have served already 418 days imprisonment by way of pre-sentence detention and I will cause that declaration to be noted in the records of the court.

   47I will further order, pursuant to s 6AAA of the Sentencing Act, that but for your plea of guilty you would have been sentenced to a total effective sentence of two years and three months with a non-parole period of 18 months.