Director of Public Prosecutions v Marchi

[2021] VCC 1330

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00733

DIRECTOR OF PUBLIC PROSECUTIONS

v

SILVIO MARCHI

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 September 2021
CASE MAY BE CITED AS:	DPP v MARCHI
MEDIUM NEUTRAL CITATION:	[2021] VCC 1330

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 J. McCarthy	Office of Public Prosecutions
For the Accused	Mr Z. Menon	Victoria Legal Aid

HIS HONOUR:

1Silvio Marchi, you have pleaded guilty to one charge of a prohibited person possess a firearm, one charge of trafficking in a drug of dependence, that being methylamphetamine and four charges of possession of a drug of dependence being various drugs.  Insofar as Charge 6 is concerned, the maximum penalty is one of five years.  The other circumstances regarding the other three possessions as monetary penalties only.  A prohibited person possess a firearm carries 10 and traffic in a drug of dependence carries 15 years.  You have also pleaded guilty to three uplifted matters of proceeds of crime, having ammunition and offending whilst on bail.  Insofar as the ammunition and the offending whilst on bail are concerned, you are convicted and discharged.  Insofar as the indictment is concerned, on the charges other than Charge 6 of possession of drugs, you are convicted and discharged. 

2You pleaded guilty at an early time.  You are 35 years of age.  Whether your plea of guilty in itself discloses remorse is very problematic, however, I accept that you do have an element of certainly wishing that you did not live the life that you have lived and I do take that into account.  You obviously get the utilitarian benefit of that plea of guilty, in saving the community the cost of a trial and as it has been clearly pointed out in the Court of Appeal in the matter of Worboyes, a visible discount should be given to people who plead, therefore alleviating the justice system of the ludicrous pressure under which it operates at the moment.

3As I have said, you are 35 years of age and you do have a significant criminal history.  You have been gaoled on a number of occasions and there is one of 14 months for aggravated burglary.  You have priors that involve violence, dishonesty, weapons, though I suspect your counsel is right, this is the only firearm you have ever been charged with and it is all in all, not an impressive record.  The offending, I will describe in a moment, has to be regarded as serious, in my view particularly the gun, calls for the application of general and specific deterrence, denunciation and appropriate punishment.

4The circumstances of the offending are that on 25 August 2020, at approximately 5 am in the morning, police attended at an address in Dandenong, as a member of the public had reported an unusual car and a suspicious male.  At that period of time, you were on bail for other matters and again I am aware of the consequences of that.  Police entered the carpark and saw you emerge from behind a car in an attempt to flee.  They told you to stop and you did.  When they looked at you, you were very drowsy, speech was very quiet and slurred and your eyes were glazed.  I have no difficulty accepting you were very significantly drug effected which has played a significant in my finding, that the possessions are indeed in are all probability for personal use.

5The police formed the view that you were drug effected and searched you and $4,355 was found in cash in your right pocket and they also found cameras and scales and other matters.  They are all part of the proceeds of crime charge.  I will be giving you a sentence for that.  A key to a black Mazda was located and the Mazda was then searched.  A firearm case with a sawn-off shotgun was found.  There were also 32 rounds of a 12-gauge shotgun ammunition.  It is a situation where your DNA was on the handle and the trigger guard of that sawn-off shotgun and it clearly was yours.  I do not accept the explanations, I rarely do, as to where it may have come from.

6Sawn-off shotguns have only one purpose, that is to intimidate people or to shoot them.  They are a very dangerous weapon and whilst I am treating the offences, on your counsel's submission as being separate, that is the gun and the trafficking, it seems pretty clear that in this day and age, sawn-off shotguns and ice go very much hand in hand.  I will be giving you a separate custodial sentence for each and there will be a degree of concurrency in these circumstances.

7A black bag and a plastic bottle containing 49.2 grams of Butanediol was found.  That is very close to the trafficable quantity, so I am not prepared to find that was for your personal use.  There were 53.8 grams of methylamphetamine were found.  That gives rise to trafficking, bearing in mind that there were scales and a significant amount of cash found upon you.  There was a small amount of cannabis, a small amount of heroin and a small amount of Buprenorphine found.  Each one of which I find was probably for personal use.  You were found deemed by police to be unfit to be interviewed and accordingly you were not, and I have pointed out that you were on bail and you were in fact a prohibited person. 

8Since you have been arrested, you underwent another sentence of 80 days, which I take into account as a Renzella concept and up until, including yesterday as I understand it, you had done 385 days of pre-sentence detention for the matters that I am to sentence you for.  You have been in custody continually since.  Gaol is the only option open.  You have breached many Corrections orders in the past and a combination order is simply out of range in these circumstances.  It then becomes a matter of a head sentence and a minimum term and I accept what your counsel says, that I can give you a somewhat less than normal earlier opportunity for parole and that is what I propose to do.

9I then look at matters personal to you and personal to this sentencing situation.  I take into account the fact that you have undergone the remand in Covid circumstances, which gives rise to the apprehension on the part of prisoner contagion.  It also causes difficulties in terms of personal visits and I am aware that whilst it does not eliminate them, it often makes programs much harder to do.

10To your credit, whilst you have been in custody, you have done a number of programs.  The certificates for those have been tendered and they do indicate, at least while you are drug free and in those circumstances, that you do have a desire to rehabilitate and perhaps lead a normal existence.  I then, with your counsel, given a history of your background.  There is also a - which I have tendered and obviously take those matters into account.

11I am pleased to note that there has been now a significant participation in Narcotics Anonymous, which gives me, further confidence in your capacity to rehabilitate. I also look at totality.  You are, as I said 35.  You are from a Fijian-Italian background.  You were born in Australia.  You were, as I understand it, born in Western Australia.  Your parents came to Melbourne and your parents split up - sorry, your mother certainly moved to Melbourne and since the age of eight, you have lived here.

12You completed Year 11 at school and do not appear to have been in any real difficulty with all that. You have told the neuropsychologist, Mr Jackson, that you were in good hands on type subjects and you left school to commence an apprenticeship in cabinet making. Apparently you did quite well with that and I am told that you have in fact completed that apprenticeship.  You took some pride in the work that you were doing.

13What has happened is that subsequent to that, you had fallen into drug use and the long forensic history commences, as I said, quite some time ago.  There is material to do about car accidents and the like and I accept what Mr Jackson says.  I think there is no need to go into great detail.  As your counsel points out, you are more indicative of a man searching for reasons, why he behaves in the way that you do, rather than any form of malingering or deliberate misinforming of others. I certainly do not make any adverse findings against you in relation to that.  I think the report speaks for itself as to what I am talking about.

14You currently believe that you have a brain injury from a collision, a motor vehicle collision in 2013 and it is pretty clear that brain scans and the like say that you are in fact normal and indeed in that accident, no traumatic injury was identified.  As I say, I do not need to go into the detail.  I think it is easier just to refer back to what was contained in a report from a Dr Chen on
26 October of 2008.

15This is a report that was referred to by Mr Jackson.  He said that back then:

'Medical history of heavy drug use, mood disorder, depression with suicide ideation and attempt.  He was admitted to Monash Medical Centre Psychiatric Ward during June 2008 because of depression with suicide ideation'.

16And then goes through the medications.  He then goes onto say that:

'I received a Southern Mental Health Service Discharge Summary which noted an admission from 3 June 2008 until 13 June 2008.  The diagnosis was polysubstance abuse with a differential diagnosis of bipolar effective disorder'. (though I interpolate, that apparently was provisional only).

17They admitted you for suicidal ideation in the context of that polysubstance abuse and emotional crisis.  It noted that you had three years due to heavy drug use, antisocial behaviours whilst on drugs and were currently in a situation of crisis.  ‘He overdosed on drugs', that he then names.  'The constant drug use has led to financial strain.  He has been constantly chased by gangster people on the street.  Talks about the car accident in 2008 which added a financial burden.  He had an unstable job.  He was constantly blamed by his family members and did not think that life was worth living.’

18“He was commenced on antidepressant mood stabiliser and was referred to services, as well as other medications.”  You said at that time you were living at home with your mother brother, unemployed.  I notice some - back later on, that it would appear that some of that period of drug use had coincided with your mother being incarcerated and I do not know what that is about and I am not going to ask. It is clear that there have been attempted suicides on a number of occasions over the years.

19I accept, for these purposes, that there is no acquired brain injury.  Verdins and Bugmy play no part as is very properly conceded by your counsel.  But you are a person who does have a long history of depression, anxiety and past psychosis, though that psychosis would appear to be clearly drug related.  In those circumstances, one would normally have a very bleak outlook upon your future.

20However, as I said, you have done courses in gaol.  You certainly are making an attempt, and at the age of 35, where sometimes people are able with your background and your difficulties to turn their lives around.  I still have to, however, in these circumstances look at the prospects of rehabilitation which have to be guarded, the risk of you reoffending if you get out and use is going to have to be extremely high.

21I am in the exercise between appropriate punishment and giving you the opportunity to turn around your life, if you can, and therefore saving the community the risk of you reoffending and the cost of having to keep you incarceration.  So taking all those matters into account, as best I can, on Charge 1, 18 months.  On Charge 2, 18 months.  Charge 3, convicted and discharged.  Charge 4, convicted and discharged.  Charge 5, convicted and discharged.  Charge 6, three months.  I direct that nine months of the sentence imposed on Charge 2, and one month of the sentence imposed on Charge 3, be served cumulatively upon each other and upon the sentence imposed on Charge 1.  That gives an effective total sentence on the indictment of 28 months.

22The summary matters, the ammunition charge, convicted and discharged.  The indictable offence whilst on bail, convicted and discharged.  Summary proceeds of crime, sentenced to be imprisoned for a period of three months.  I direct that two months of that three months be served cumulatively, upon the sentence imposed upon the indictment which gives a total effective sentence on my calculation of 30 months.

23In this situation, I will do the best I can for you insofar as the Parole Board is concerned, and I direct that you become eligible for parole at the expiration of 21 months of your sentence and if you have done well, it then becomes a matter between you and the Parole Board.

24I direct that 385 days be reckoned as having been served under this sentence and I say that but for your plea of guilty, pursuant to s6AAA, I would have sentenced you to be imprisoned for a period of three and a half years, with a minimum term of two and a half.  One of the factors that I have taken into account here is that you do seem to do much better in gaol.  I am also concerned about the concept of institutionalisation, but it may be ultimately there is not much I can do about that or anybody else.  All right, any other orders I need to make gentlemen?

25MR McCARTHY:  No, Your Honour.

26HIS HONOUR:  No.

27MR MENON:  No, Your Honour.

28HIS HONOUR:  Do you want to talk to your client Mr Menon?

29MR MENON:  Yes Your Honour, if I could have a few minutes, that would be good.

30HIS HONOUR:  Of course you can.  Yes, thank you for that Mr McCarthy.  Thank you, Mr Menon.

31MR MENON:  As Your Honour pleases.

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