Director of Public Prosecutions v Pepe

[2014] VCC 1414

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -14-01469

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUCIO PEPE

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2014
DATE OF SENTENCE:	26 August 2014
CASE MAY BE CITED AS:	DPP v Pepe
MEDIUM NEUTRAL CITATION:	[2014] VCC 1414

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 C Hollingworth	OPP
For the Accused	Mr C Nikakis	Haines & Polites

HIS HONOUR: 

1Lucio Pepe, you pleaded guilty to an indictment charging you with trafficking in methylamphetamine, between 21 October 2010 and 24 April 2011. 

2You have also admitted a number of prior court appearances and convictions, including offences involving the trafficking in cannabis and the cultivation of cannabis.  Albeit, the last of those offences for which you received a term of imprisonment, occurred or was dealt with by this court in November 1999.

3

The prosecution has tendered and relied upon a summary of prosecution opening, which was read this morning.  I am not going to read it again.  It sets out evidence of a course of conduct over a period of just over six months, in which you were the lynchpin, if I can put it that way, in an organisation designed to supply methylamphetamine through a pub in Morwell, in which you had purchased an interest.  It may be that it was Mr Zotos who inveigled you into the investment of $120,000 in that pub, but it is clear,

I think, that you were the lynchpin - I have already used that expression, I use it again, in this organisation.   It was you who were able to source the methylamphetamine and provide the methylamphetamine for distribution, using the pub in Morwell.

4I am told that Mr Zotos was - and indeed the documentation with which I have been provided, shows that he was ultimately sentenced to a term of imprisonment of two years for his trafficking activity.  It is not clear exactly the facts and circumstances relevant to that sentence, and it is noteworthy that it involved both trafficking in amphetamine and trafficking in cannabis as well as other offences.  It also included trafficking in an unknown drug of dependence.   You are not charged with such offences.  He does have a significant criminal record, but nothing of great significance so far as drug offending is concerned.

1. Your counsel provided me with a deal of information about your background, including reference to your career in the police force in Victoria, which spanned a total of about 12 years, through the cadets and ultimately as a police officer.  Eventually you were discharged in 1987 or 1988, as being medically unfit.   The letter  from Mr Wigg, which was tendered on your behalf, speaks of that period of your life, to some extent, and suggests that that is the origin of the post-traumatic stress disorder, which it would appear you have suffered from for some considerable period of time.

   6You had a good upbringing, and you ultimately passed Year 12, as a police cadet.  You married in 1988.  You have four children, all of whom seem to have done well.  Julia, aged 27, Katherine, aged 24, and Guy and Ashley, twins aged 21. 

   7Unfortunately the marriage broke up in about 2000, perhaps associated with the period in which you were incarcerated, from that time.   During that term of imprisonment, you met Mr Zotos at Ararat Prison, or at Langi Kal Kal.  After having served that term of imprisonment, you apparently started using drugs and at some stage Mr Zotos approached you with a view to your becoming involved in the Morwell pub venture, which was the base for this trafficking that occurred in 2010 and 2011, at the Merton Rush Hotel in Morwell.

   8Apart from Mr Zotos, you met other criminals in the prison environment, not surprisingly, and you were able to source the methylamphetamine through the contacts that you had built up during that period of incarceration. 

   9You invested $120,000 of your inheritance, in the Merton Rush Hotel and the business associated with it, and it was during that period of your association with the hotel that this offending occurred. 

   10Your ex-wife had committed suicide in 2008, and you had assumed care of your children.  You had worsening health problems during that period.  The letter from Dr Gouras shows that you developed atrial fibrillation in 2005, and as a result of the treatment you received for that, you developed coronary heart disease, which necessitated a bypass operation, which I think occurred in about 2006.  Your health deteriorated further and you were diagnosed with prostatic cancer, I think in 2012, and you have had a peptic ulcer, asthma and hypertension. 

   11

   Your health is assessed as fragile, and it seems clear from the report of

   
   

   Mr Gouras and also that of Mr Hall, that you have also suffered from depression and anxiety and post-traumatic stress disorder, for a number of years.  Certainly it would seem the post-traumatic stress disorder is of some considerable vintage.  Also I should say, panic attacks as well. 

   12No doubt the history of your incarceration, your health problems and the suicide of your former wife and the mother of your children, will have contributed to the context in which this offending conduct occurred.  It would not have been easy for you, I well understand, to have found work with your criminal record, despite what would seem to be plenty of intelligence and ability, at least when you are fit and well. 

   13The future for you does not look good, from a health point of view.  There is no doubt that your health will have impact on the time you spend in custody already and would impact on a term of imprisonment.  You would undoubtedly do your time harder as a result of the physical problems, as well as the psychological problems that have been identified.    That is a matter that I am bound to take into account.

   14Your counsel also submitted that you pleaded guilty at the first reasonable opportunity, I think that that is a fair submission, having regard to all the circumstances.  The prosecution case ended up being rather different from that which they originally presented against you, and when it became apparent that the case involved trafficking simpliciter, it seems you pleaded guilty at the first available opportunity.  That too is to be taken into account in your favour. 

   15The other matter on which your counsel placed considerable significance, was the delay that has occurred between the commission of this offence and today, when you fall to be sentenced.  There is no doubt that delay, however caused, is a mitigating factor and a significant mitigating factor.  In this case the delay is substantial.  You were originally charged on 28 April 2011, and we are now some three and a half years down the track.   That too has been a significant burden on you, hanging over your head for that substantial period of time. 

   16I was supplied with such information that seems to be available about the charges and the disposition of the  courts, in relation to your co-offenders, including Mr Zotos, who as I have already indicated, received a term of imprisonment of two years for his offending conduct.   Mr Kabalan, who was the manufacturer and supplier of much of the methylamphetamine in which you were trafficking, received a non-custodial sentence, involving a 15 month Community Corrections Order, with a requirement that he undergo 120 hours of unpaid community work. 

   17It is always difficult in the absence of detailed information to draw close comparisons between the cases of individuals involved in, joint criminal conduct, and to assess precisely what the roles were of each of those individuals.  However I do find that information useful in determining an appropriate outcome in your case. 

   18I am required, of course, to express denunciation of this court of conduct of this kind.  I am required to punish you adequately for your offending.  I regard individual deterrence as of some significance, particularly in a person who has a prior conviction for trafficking in a drug, for which he received a term of imprisonment and a substantial sentence for cultivating a drug of dependence.  Albeit that those matters were some years ago. 

   19Perhaps most importantly, the court is required to pay proper regard to the sentencing principle of general deterrence, that is deterring others from committing offences of this kind.  There is real concern in the community about the trafficking in methylamphetamine.  These courts all too often see the consequences of persons trafficking in that drug.  And it cannot be ignored that sentences have to be directed at deterring others from committing offences of this kind, particularly when the offending is for profit and where, although you may have had a habit, it's not suggested you were suffering from the severe addiction of a kind which would compel you to participate in conduct of this kind.  It seems to me clear that your motivation was greed rather than need.   This was a trafficking operation for profit. 

   20

   All of that I have to balance against the need to ensure as far as I can, your rehabilitation.  I note that in addition to your plea of guilty, that

   
   

   Mr Hall and I think perhaps Mr Gouras also speaks of your remorse.  Certainly Mr Gouras does.  And I note also the high opinion that Mr Wigg clearly has of you, many aspects of your character, and he implores me to form that view that you deserve a chance to change your life for the better, and that he will provide support to you in that regard. 

   21Your counsel invites me to impose a sentence wholly suspended.  I cannot do that consistent with my duty.  I must impose a term of imprisonment - immediate term of imprisonment.  However it does seem to me that the kind of sentence that  your conduct would ordinarily warrant, is very significantly mitigated by the various factors that I have sought to identify.  And in those circumstances, I am not minded to impose a sentence that is greater than that imposed upon Mr Zotos. 

   22Lucio Pepe, would you please stand. 

   23On the charge of trafficking a drug of dependence, I sentence you to imprisonment for a period of two years.  And I order that you serve a period of 14 months before you become eligible for parole. 

   24But for you plea of guilty, I would have sentenced you to a term of imprisonment of three years, and ordered you to serve a period of two years before you would become eligible for parole. 

   25I make the order for disposal of property, in accordance with the draft of which I have been provided.

   26I order that you undergo a forensic procedure, the taking of a scraping from your mouth, and/or a blood sample.  I note that the order will authorise a member of the police force to require you to provide that sample.  If you provide the scraping from the inside of your mouth when required to do so, then you - there will be no more to it.  However if you refuse or fail to do that, the officer will be authorised to obtain a blood sample and may use reasonable force to obtain that blood sample.  I am sure you will not put them to that trouble. 

   27I further order that 12 days of pre-sentence detention be reckoned as time served on the sentence that I have imposed and deducted administratively from the period you will actually have to serve. 

   28Are there any other orders that I need to make?

   29COUNSEL:  No, Your Honour.

   30HIS HONOUR:  Yes, thank you.  I will just sign those orders.  Yes, thank you.  nine o'clock tomorrow. 

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