Director of Public Prosecutions v Mimmo
[2024] VCC 1074
•12 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR-23-01006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTIAN MIMMO |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 July 2024 | |
DATE OF SENTENCE: | 12 July 2024 | |
CASE MAY BE CITED AS: | DPP v Mimmo | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1074 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing.
Catchwords: Plea of guilty – Trafficking in a drug of dependence – Delay – Very good prospects of rehabilitation.
Legislation Cited: Drug, Poisons and Controlled Substances Act 1981 s 71AC(1); Sentencing Act 1991 ss 6AAA, 48CA.
Cases Cited:DPP v Fatho [2019] VSCA 311; Dang v The Queen [2020] VSCA 24
Sentence: Community Correction Order for a period of 2 years and 6 months, with conviction.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms T Stokes | Office of Public Prosecutions |
| For the Accused | Mr C Mandy SC (for Plea) Mr M Sehler (for Sentence) | Burn City Legal |
Introduction
1Christian Mimmo, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely cocaine contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 which carries a maximum penalty of 15 years imprisonment.
Circumstances of the offending
2A prosecution opening was tendered on the plea and is summarised as follows:
3At the time of offending, you were 24 years old and residing at your family home in Safety Beach.
4On 14 July 2021, investigators from the Victoria Police Armed Crime Squad executed search warrants on a white coloured Ford Transit van with Victorian registration located at Anchorage Avenue, Safety Beach.
5The white coloured van was seized and examined by members of the Victoria Police Major Crime Scene Unit at a later stage. The cargo area contained numerous items, including a white coloured PVC plumbing pipe that was secured at one end with a screw lid and open at the other. The opposing screw lid was located in a black coloured canvas storage basket nearby. The white coloured PVC plumbing pipe contained a number of items including three vacuum sealed bags containing a number of zip lock bags with cocaine, a plastic shopping bag with a Louis Vuitton pouch, a zip lock bag containing four silver sachets labelled ‘Boric Acid’.
6The following items were seized from the white coloured van:
(a) 22 Trace DNA swabs (wet and dry);
(b) three vacuum sealed bags containing cocaine inside the white coloured PVC pipe; and
(c) a white coloured PVC pipe in the rear cargo area.
7Investigators established the white coloured van was registered in your name.
8A forensic analysis was conducted on the white coloured van which identified your latent fingerprints on the inside of the fixed passenger side window.
9Forensic analysis was conducted on the drug packaging. Your DNA cannot be excluded from the seal region of the zip lock bags inside the three vacuum seal bags located in the white van with a likelihood ratio of 100 billion, 260 billion and 100 billion respectively.
10Your latent fingerprints were located on one of the zip lock bags located in the white van.
11Analysis of the cocaine located in the white van indicated it weighed 415.5 grams. The total percentage which was cocaine is 3.7%.
12On 1 February 2022, you were arrested by appointment at the Moorabbin police station. You made a no comment record of interview.
Nature and gravity of offending
13Trafficking in a drug of dependence is a serious offence as reflected in the maximum penalty imposed by Parliament.
14In cases of trafficking, one of the key indicators that informs the assessment of gravity of the offending is the quantity trafficked, in this case, put on the basis of possession for sale.[1] In this instance the amount of cocaine found in your possession was 415.5 grams, albeit of low purity. To give that some context, a traffickable quantity of cocaine is 3 grams while a commercial quantity is 500 grams. Therefore the amount found in your possession was significant for a charge of trafficking simplicitor.
[1] DPP v Fatho [2019] VSCA 311, [70]; Dang v The Queen [2020] VSCA 24, [15].
15Mr Mandy SC who appeared on your behalf, submitted that as the purity was low, an inference can be drawn that it may be difficult to sell. Such speculation in my view is not to the point – in this instance the legislative regime categorises amounts of drugs on a mixed basis without consideration of the quality of the product or indeed if the quality may impact the marketability of the product. The drug was found in zip lock bags suggesting it had been packaged for sale.
16In my view in all the circumstances this is a relatively serious example of trafficking simpliciter.
Personal circumstances
17You are now 27 years old. You were born in Melbourne and grew up on the Mornington Peninsula. You describe your family as close-knit and state that you had a good upbringing. You have two brothers, both of whom are married and have children. You also had an older sister who passed away at age 10 from an aneurysm, which had a tremendous impact on the family. You were only two years old at the time, and your older brother Anthony was 12 and has struggled with drug addiction and mental health issues for a number of years. In recent years, your parents have endured some difficulties resulting in the loss of their respective businesses and the family home.
18You currently live with your longstanding partner, to whom you are engaged. The two of you have been together for seven years. Your partner remains supportive of you and in a letter provided to the court, states that you will be able to navigate your life in a positive direction once these legal proceedings have concluded.
19You attended Penbank Primary School until Year 6 and then attended Frank Dando Sports Academy. From Years 9 to 11 you attended Peninsula Grammar. You were heavily involved in football, including as the captain of the First 18. You left school to commence an apprenticeship as a chef which you did not ultimately complete. You worked full time in your father’s building business until he retired and you now work full time as a casual for a labour hire company that contracts to government infrastructure projects.
20You report that you were prescribed medicinal marijuana for anxiety and sleep issues around two and a half years ago however have stopped taking it due to its interference with your sleep and work commitments. You have engaged with an alcohol and drug counsellor, James Harding, to better understand your choices relating to this offending. In his letter of support, Mr Harding indicates that he is willing to facilitate regular counselling sessions with you moving forward to support you through your ongoing rehabilitation.
21A psychological report of Mariana Ferraz dos Santos dated 24 June 2024 was tendered on the plea. The report details your engagement with six weekly psychological sessions for a period beginning in May 2024. Your goals throughout these sessions have been to address your offending behaviour and self-development.
22Ms Ferraz dos Santos opines that you have demonstrated fair insight in relation to your involvement in this case. She states that you would benefit from continued psychological treatment with a focus on reformulating, repairing and restoring your cognitive deficits and exploring your past traumas and family dynamics.
23A bundle of eight character references were tendered on the plea. In general terms these references describe you as a family orientated, honest and trustworthy person. They speak with a united voice as to your respectful and courteous demeanour. These letters show that you enjoy the ongoing support of your family and friends which remains available to you as you move forward with your life and put these proceedings behind you.
Sentencing considerations
Plea of guilty
24I first take into account your plea of guilty which was formally entered following a sentence indication before me. The filing hearing of this matter occurred on 15 August 2022 and it is agreed that on 21 November 2022 you offered to plead guilty to a charge of trafficking simpliciter which at that time, was rejected by the prosecution. Ultimately, a more serious charge was discontinued in November 2023 and, following a summary jurisdiction application, the matter was listed for a sentence indication. In the circumstances your indication to plead guilty was at an early stage and as such should be given full weight as it has demonstrated your willingness to conclude the matter, thereby promoting the course of justice.
Delay
25I take into account the delay in this matter. Some three years have passed since the warrant was executed and you have not further offended in that period. I also take into account the other aspect of delay where this matter has been hanging over your head for a considerable time, giving rise to anxiety which is touched on in the report of Ms Ferraz dos Santos and the character references.
Prospects of Rehabilitation
26Turning to your prospects of rehabilitation. I take into account your lack of criminal history and your otherwise good character. Further, it is clear on the materials that you have significant supports in the community, that you are working full time and that you are in a stable long term relationship. In the circumstances in my view your prospects of rehabilitation are very good.
Other considerations
27Undoubtedly general deterrence is the primary sentencing consideration in cases such as this. Trafficking in a drug of dependence ultimately has detrimental impacts on individuals and the community. As such, those who contemplate such conduct must be reminded that there will be consequences. I do however accept the submission on your behalf that in all the circumstances, specific deterrence need not carry weight in the sentencing calculus.
28Mr Mandy submitted that a Community Correction Order would meet the relevant considerations in this instance. Ms Stokes, who appeared on behalf of the Director of Public Prosecutions also submitted that a community correction order is within range.
29I had you assessed for a community correction order and you have been found suitable.
Sentence
30Mr Mimmo, would you please stand.
31Christian Mimmo, on Charge 1, trafficking in a drug of dependence, you are convicted and will be placed on a community correction order for a period of 2 years and 6 months. While all community correction orders are punitive in nature, the order I am imposing will have specific punitive and therapeutic components.
32In addition to the standards conditions, you will be required to undertake 200 hours of unpaid community work and you will be required to undertake treatment and rehabilitation in relation to drug use and your mental health. You will also be subject to supervision.
33Pursuant to s 48CA of the Sentencing Act 1991 (‘Sentencing Act’), I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation conditions, may be credited as hours of unpaid community work.
34Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 18 months imprisonment with a non parole period of 12 months.
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