Director of Public Prosecutions v Mocellin

[2019] VCC 1364

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01096

DIRECTOR OF PUBLIC PROSECUTIONS

v

JESSE MOCELLIN

---

JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2019
DATE OF SENTENCE:	23 August 2019
CASE MAY BE CITED AS:	DPP v Mocellin
MEDIUM NEUTRAL CITATION:	[2019] VCC 1364

REASONS FOR SENTENCE
---

Subject:
Catchwords: Guilty plea - traffic commercial quantity of MDMA – nearly 1 kg – modest financial reward – 25 years old – immature – good prospects of rehabilitation
Legislation Cited:
Cases Cited: DPP v Maxwell [2013] VSCA 50, Gregory [2017] VSCA 1,
Sentence: 5 years imprisonment – 3 years minimum non-parole release period

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. J. Saunders	Office of Public Prosecutions
For the Accused	Ms. B. Franjic	Sarah Pratt & Associates

HIS HONOUR: 

1Jesse Mocellin, you have pleaded guilty to one charge of trafficking a commercial quantity of the drug of dependence and summary charges of dealing with property suspected of being proceeds of crime and breaching your parole by committing an indictable offence.

2On 17 June 2018 you were granted parole and released from prison where you had served a sentence for violent offending including false imprisonment and causing injury. 

3You knew your co-offender, Jack Corben, who was a drug dealer. 

4Unknown to either of you, he was the target of a police investigation.  Police had obtained warrants for a telephone intercept on Corben's phone and listening and tracking devices for his car.

5Intercepted communications between Corben and you showed you were involved with him in obtaining a significant quantity of drugs, believed to be MDMA, for $100,000 and the subsequent trafficking of those drugs.

6On 24 September 2018, you asked Corben if he could get “kegs” for “100”.  On the prosecution case, and it was accepted by your counsel, that was code for one kilogram of MDMA for $100,000.

7Corben told you he paid his source a hundred.  You asked him if he could supply the drugs for 95.  He suggested you propose to the customer a price of 105 and that he would try to get the drugs for 95 and that he would split the profit, $5000 each, with you.

8In another conversation, half an hour later, you told Corben you needed scales and four days later, on 28 September 2018, you discussed with him a bag containing two large bundles of cash. 

9On 30 September, between 3.26 pm and 4.31 pm, in several phone conversations, Corben and you discussed the proposed sale to the customer.  Corben did not want to deliver the drugs himself and you negotiated with the customer for him to pay $1000 for a driver to deliver the drugs.

10You talked with Corben about the possibility that the customer may only want half and not a full one; on the prosecution case, a half or one kilogram of MDMA. 

11Corben said he would split the drugs in half and suggested you message “Sab” to offer him “five at 35”.  You agreed to do it.  Later that evening, at 8.22 p.m., you told Corben the customer paid the driver but did not take the drugs.

12Around the same time, in another conversation, you asked Corben whether you could get a prospective customer to go to see him about the “one for five”.  Corben told you to message him.

13Three weeks later, on 19 October 2018, police went to your parents' home where you were living in a bungalow and arrested you.  They seized from you two Apple iPhones, a gold bracelet or a gold-coloured bracelet, a note book, black runners, a Gucci bag, a Gucci wallet, $450 in cash and assorted receipts which were suspected to be the proceeds of crime.

14At interview, you declined to answer questions which was your right.  You were remanded in custody and have remained in gaol since.  Your parole which was revoked, expired on 6 March 2019.  You were required to serve the unexpired portion of the parole period, that is, 126 days. 

15You have admitted a criminal record. 

16On 19 December 2012, you were convicted of three charges of criminal damage, one charge of aggravated burglary, one charge of common law assault and one charge of theft and were sentenced to two years' detention in a youth justice centre. 

17I have read Her Honour, Judge Wilmoth's reasons for sentence. 

18On 19 March 2012, when you were 19 years old, under the influence of meth amphetamine, you went to your ex-girlfriend's home, smashed a bedroom window and smashed the windscreen and driver's side window of her father's car and left.

19You returned the next day and broke into her home where you hit a glass door panel, which smashed, cutting her arm.  You squeezed her throat and pushed her head against a wall.  When her brother confronted you, you fled. 

20At the sentencing hearing, your mother gave evidence and described you as a model child until you started using drugs.  She said, at school, you had been a good student and excelled at sport.  You left during Year 11 and then had a series of unskilled jobs, a long period of unemployment and finally a job as a traffic controller, which you did not like and which coincided with your introduction to the drug ice.  You were 20 and a first offender at the time of your sentence.

21On 27 October 2014, after a jury trial, you were convicted of charges of false imprisonment, conduct endangering life and assault, and also the charge of intentionally causing injury to which you had pleaded guilty before the jury.

22For those crimes you were sentenced to a total effective sentence of four years and six months and His Honour Judge Chettle fixed a minimum non-parole period of three years.  I have read His Honour's reasons for sentence. 

23On 19 August 2012, before Judge Wilmoth had sentenced you, after
co-offenders had kidnapped a small time drug-dealer who was believed to have stolen money from one of them, you went to a hotel room where the victim was being detained.  You struck his leg with a machete. 

24You went with co-offenders who drove the victim to another address.  In the car, you punched him three to four times to the head and when you arrived at the address, you punched him to the mouth.  You were the youngest of the six offenders.  Your counsel told Judge Chettle you were going to see one of the co-offenders to buy drugs. 

25Ms Franjic, who appeared on your behalf before me, told me you were released on parole on 17 June 2018.  You went to live with your parents and your parole conditions were stringent. 

26You attended offender behaviour programs on Tuesdays and drug and alcohol counselling on Wednesdays, you did a day's community work on Thursdays and had other meetings on Wednesday and Friday mornings.  I was told you kept all your appointments.  You were living with your parents and did not relapse into drug use.  Random urine testing confirmed this.

27However, because of your parole requirements and the prohibition from going into the Frankston area, you could not get work and you turned to previous associates to find ways to get money.  I was told it was in this context that you re-offended. 

28You had a brother; you had fallen out with him and sadly he died on 14 April 2018 while you were in custody.  His partner, Dana Barnsley, in a letter dated 16 August 2019, wrote your brother was her partner for five years.  She met you through him and visited you in gaol at his request. 

29When you were released from prison in June 2018, you became her biggest support.  She described you as extremely kind and passionate.  You spent time with her exercising, eating out and talking about getting stable work and settling into your own home.

30She talks to you daily and visits you regularly in prison.  She said you are remorseful and you speak about being a contributing member to your family and community when you are released. 

31Your father is a parcel courier and your mother works part time.  In their letter, dated 17 July 2019, they wrote they believe your immaturity contributed to your criminal offending. 

32They wrote that your offending against your ex-girlfriend occurred when your best friend cheated on you with her, and the subsequent offending occurred when you got caught up in the plan of people older than you.

33They confirm that when you were released on parole you were doing everything by the book and then you fell in with old mates.  To them, you are starting to show some maturity by taking the blame for your actions.  They are confident that you now want to work to make something of your life and they want you back with them.

34In written and oral submissions, Ms Franjic relied on the following factors in mitigation of penalty. 

35Firstly, your relatively early guilty plea which was made on the day of a committal hearing prior to any witnesses being cross-examined.

36Secondly, the strong support of a loving family. 

37Thirdly, the absence of other drug convictions. 

38Fourthly, your relative youth, you were 25 years old when you offended and are now aged 26, and

39Fifthly, the modest financial reward you expected from the drug trafficking. 

40I accept your guilty plea has high utilitarian value and is evidence of your acceptance of responsibility for your actions, and some evidence of remorse. 

41I accept your family support is a protective factor in favour of your rehabilitation.  While your prior convictions are relevant, that offending occurred when you were 19 years old, and the absence of drug convictions is also relevant. 

42You are still relatively young.  As it happened, you have spent most of your adult life in detention for two episodes of serious offending which occurred in March and August 2012. 

43If your parents are correct to say that you are now showing signs of maturity, I accept your prospects for rehabilitation are quite good.  I also accept the relatively modest financial reward you expected is relevant to my assessment of the seriousness of your offending. 

44In the Commonwealth Director of Public Prosecutions v Maxwell [2013] VSCA 50, a drug importation case, the Court of Appeal said at paragraph 21:

'In addition to the weight of the drugs imported or trafficked, the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence.  Other things being equal, an importation which was undertaken because it will bring or is expected to bring a large financial reward to the offender will be more serious than one where the expected reward is small or non-existent.' 

45The reasoning is equally applicable to drug trafficking offences and I take all of these factors into account to moderate the sentence I shall impose upon you.

46Mr Saunders who appeared for the prosecution, submitted, while your offending involved one transaction, which was in effect a supply by Corben of MDMA and your assistance to help him try to sell it, and that you offended over a short period, your offending was nonetheless serious as it involved a significant quantity of drugs. 

47He submitted the actual quantity of MDMA you trafficked could not be ascertained, but it is the prosecution case, and through your counsel you accepted, the quantity trafficked was only just short of one kilogram.  A commercial quantity is 500 grams of mixture of the drug and a large commercial quantity is one kilogram. 

48He also submitted that, as your motive was to profit from the sale of drugs, there is a need for specific deterrence in your case. 

49I accept the force of his submissions and take them into account. 

50In Gregory [2017] 268 ACR 1, where the Court of Appeal called for an increase in sentences for the upper category of offences of commercial quantity trafficking, the Court said at paragraph 98:

'Sentences well into double figures would have to be expected for commercial quantity trafficking offences where one or more of the following features was present:

·the quantity involved approached the large commercial quantity threshold;

·the offender was in charge of the trafficking business

·the trafficking business was conducted for a substantial period

·the offender pleaded not guilty and/or

·the offender had relevant prior convictions.”

51Mr Saunders submitted yours is not a case where the Gregory proposition is applicable to you.  In contra-distinction to the features identified in Gregory, your offending involved a single transaction where you asked Corben if he could supply a kilogram of MDMA, initially to be sold to a customer who declined to proceed with the purchas, e and then with you assisting Corben to sell the drugs in smaller quantities to “Sab” and possibly others.

52Your offending occurred over a relatively short period of seven days.  The reward that you anticipated was relatively modest, something in the order of $5000.  You pleaded guilty to the charge and while you have served terms of imprisonment for violent offending, you have no history of drug offending.

53In the circumstances of your case Mr Saunders submission was rightly made.  Nevertheless, the quantity of the drug traffic was significant and your prior convictions while not drug-related, are for serious offending and cannot be ignored.  Neither can the fact that you offended while you were on parole.

54I have read a number of recent cases concerning the offence of trafficking in a commercial quantity of a drug of dependence, including Ellis [2018] VSCA 2221, Sharbelle [2018] VSCA 324, Arnautovic [2019] VSCA 31 and Condo [2019] VSCA 181. The sentences in those cases for trafficking in a commercial quantity of a drug of dependence range from four years to seven years.

55While there are differences in the gravity of the offending and personal circumstances of the offender between those cases and yours, I have used them as a yardstick to guide me in the sentence I should impose. 

56Please stand, Mr Mocellin. 

57By this sentence I must denounce your conduct.  I must punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to the protection of the community, and as well, your rehabilitation. 

58Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows:

59On the charge of trafficking in a commercial quantity of a drug of dependence, you are convicted and sentenced to five years' imprisonment. 

60On the summary charge of dealing with property suspected of being proceeds of crime, you are convicted and sentenced to two months imprisonment and on the summary charge of committing an indictable offence while on parole you are convicted and sentenced to two months' imprisonment. 

61Taking into account the principle of totality, and noting you were required to serve the unexpired portion of your parole period, that is, 126 days, I order the sentences I have imposed on the summary charges are to be served concurrently with the sentence I have imposed on the trafficking charge and each other. 

62The total effective sentence is five years' imprisonment. 

63I order that you serve three years of that sentence before being eligible for parole, and I do so to give you the chance to demonstrate, in the community, the maturity your parents have observed will advance your rehabilitation. 

64I declare you have served 182 days by way of pre-sentence detention. 

65But for your plea of guilty, I declare I would have sentenced you to six years and six months imprisonment and fixed a non-parole release period of four years. 

66I make an order for disposal of the notebook and assorted receipts which police seized in the terms of the order filed and I make an order for the forfeiture of the items which are the subject of the proceeds of crime charge in the terms of the order filed. 

- - -