Director of Public Prosecutions v Piccolotto
[2021] VCC 1052
•30 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00062
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL PICCOLOTTO |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 July 2021 | |
DATE OF SENTENCE: | 30 July 2021 | |
CASE MAY BE CITED AS: | DPP v Piccolotto | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1052 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Prohibited person in possession of a firearm – Trafficking methylamphetamine in a commercial quantity – 70.94 grams pure methylamphetamine – Aggravated reckless exposure of an emergency worker to risk by driving – Relevant prior criminal history – Rehabilitation – Totality – COVID-19 pandemic.
Legislation Cited: Firearms Act 1996 ss 3, 5; Drugs, Poisons and Controlled Substances Act 1981 s 71AA; Crimes Act 1958 ss 195, 317AF(1)(b); Sentencing Act1991 ss 6AAA, 18, 89.
Sentence: Imprisonment for a period of 4 years, with a non-parole period of 2 years and 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D O’Doherty | Office of Public Prosecutions |
| For the Accused | Mr L Barker | Marshall Jovanovska Ralph Criminal Lawyers |
HIS HONOUR:
Introduction
1Daniel Piccolotto, you have pleaded guilty to one charge of being a prohibited person in possession of a firearm contrary to s 5 of the Firearms Act 1996 which carries a maximum penalty of 10 years imprisonment (Charge 1), one charge of trafficking in a drug of dependence in a commercial quantity, namely methylamphetamine, contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 which carries a maximum penalty of 25 years imprisonment (Charge 2), and one charge of aggravated reckless exposure of an emergency worker to risk by driving, contrary to s 317AF(1)(b) of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment (Charge 3).
2You have also pleaded guilty to the related summary offence of dealing with property suspected of being the proceeds of crime, contrary to s 195 of the Crimes Act 1958, which carries a maximum penalty of two years imprisonment (Summary Charge 4).
3You have also admitted your prior Criminal Record.
Circumstances of the offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5At the time of the offending you were unemployed and residing at 7A Albert Street, Preston.
6At 2.30 pm on 10 July 2019 police observed you leaving an address in the vicinity of 5 Victoria Street, Preston, placing a black satchel bag into a vehicle and entering the driver seat.
7Police from the Special Operations Group activated red and blue flashing lights in their vehicle. Police vehicles then blocked the path of your vehicle to intercept you. You attempted to escape by reversing your vehicle to drive away. Your vehicle collided with the police vehicle, putting the police officers in the vehicle at risk. It is these facts that relate to Charge 3, aggravated reckless exposure of an emergency worker to risk by driving.
8Police removed you from your vehicle and restrained you. They asked you, 'where is the gun?', to which you replied, 'in the black bag'. Police found the black satchel bag in the front passenger seat and searched it. Items located in the bag included:
· A handgun which was loaded with four rounds of ammunition and operable. Analysis of a forensic sample was taken from the handgun provided extremely strong support for you being a contributor to the DNA profile. At the time you were a prohibited person pursuant to s 3 of the Firearms Act 1996 which gives rise to Charge 1, prohibited person in possession of a firearm;
· Plastic zip lock bags containing methylamphetamine weighing a total of 104.9 grams and a pure weight of 70.94 grams. A commercial quantity of methylamphetamine is 50 grams pure and 250 grams mixed. Analysis of the forensic sample from some of the bags provided extremely strong support for you being a contributor to the DNA profile. It is these facts that relate to Charge 2, trafficking in a drug of dependence in a commercial quantity; and
· Accoutrements of trafficking including scales, deal bags, $3000 in bundles of $50 notes, an ice pipe and an iPhone. It is the $3000 cash which gives rise to Summary Charge 4, deal with property suspected of being the proceeds of crime. When police later executed a search warrant at your residence, they found a further seven mobile phones.
9You were conveyed to the police station where you requested to see a doctor in relation to an injury to your left elbow from the arrest. You were seen by a nurse before being taken to the Austin Hospital. You were cleared with only muscular soreness to your left elbow. You were again taken to the police station and charged without an interview being conducted as you told police you would remain mute if interviewed.
Nature and gravity of the offending
10When consideration is given to the facts that give rise to Charges 1 and 2 on the indictment and Summary Charge 4, they reflect a person who is intimately involved in the drug world, at a relatively serious level. The bag that was recovered from your car, while containing a commercial quantity of methylamphetamine together with drug trafficking paraphernalia, also contained a loaded handgun. The combination of these items self-evidently reflects the serious nature of your conduct. The possession of the weapon demonstrates that you were involved in a world where you saw the need to carry a loaded handgun, an offence that is made more serious in this instance by the fact that you were a prohibited person.
11In relation to Charge 2, the total amount of methylamphetamine is 104.9 grams with a purity of 70.94 grams which clearly exceeds the commercial quantity being 50 grams pure. The drugs found in close proximity to scales, deal bags and cash demonstrates that you were operating a drug dealing business. While your addiction to methylamphetamine was one of the drivers behind your criminal behaviour, you had clearly moved on from being a user to being a trafficker in my view, at a relatively serious level.
12In relation to Charge 3, while your conduct did not result in police being injured, it still exposed the police involved to unnecessary risk when you became aware of their presence. Rather than simply remaining at the scene you chose to attempt to escape which not only put the police at risk but also caused damage to the police vehicle.
Personal circumstances
13You were raised in Coburg in an Italian family, you being the eldest of three brothers. Your childhood was largely positive and you spent time with your grandparents whilst your parents were often working. Your mother worked for Meals on Wheels and your father worked as a concrete pump operator. You were close with your brothers and mother. Your father was a heavy drinker, a harsh disciplinarian and inflicted physical punishment on you. Your parents argued at times, particularly when your father was affected by alcohol.
14You attended St Bernard’s Primary School where you were harassed for being overweight and completed your secondary education at Samaritan College. You also engaged in sports such as tennis and soccer. You started using cannabis and drinking alcohol at the age of 13 and got into trouble at school due to your rebellious behaviour.
15Upon finishing school you left the family home and worked part time at a hardware store. You also boxed professionally and had some success winning 15 of your 27 professional fights. At the age of 20 you commenced a carpentry apprenticeship which you ultimately completed, before working in the industry.
16In your teenage years you used cannabis socially and when approximately 18, you were introduced to MDMA and amphetamines. As you were committed to your boxing career, you kept the use of drugs under control.
17You retired from boxing and it was at this stage in your life that you were introduced to methamphetamine, your drug use increased and you subsequently became involved in the criminal justice system. You state that within a short time your ice use increased to daily use and at its peak, you were using between 3 and 4 grams a day in the time leading up to your current remand. You also state that you were using GHB prior to remand.
18Around five years ago you suffered injuries to your hand when a shot gun that you were holding accidently discharged.
19
You have been in a number of relationships as an adult and you have a
four year old son to your most recent partner who is being cared for by your mother while you are in custody.
20A report prepared by Warren Simmons, psychologist dated 19 July 2021, and tendered on the plea. Mr Simmons provides a comprehensive history and makes the perhaps obvious observation that your offending on this occasion, and indeed in relation to most of your prior criminal history, is intimately connected to your drug use. An historical report prepared by David Ball, forensic psychologist dated 22 September 2017 was also tendered on the plea. Mr Ball concluded that at that time you were suffering from a substance use disorder, further confirming your long term drug battle that has led you into the criminal justice system.
21Since being on remand, education and rehabilitation programs have been limited due to the pandemic, but you have completed a number of drug and alcohol programs that were available, and you have remained drug free which is confirmed by urinalysis results tendered to the Court. You have also been drawing daily and practising the Islamic faith. An email was tendered on the plea from Colin Gower who operates a large tattoo business and is a long term family friend. You have had an interest in that trade and Mr Gower states that it is possible that he could offer you some work at his business however initially, you anticipate using your qualification as a carpenter to obtain work upon your release.
22Your mother, Laura Piccolotto, provided a letter to the Court. She states that you have demonstrated a desire to continue your drug free status in the community by engaging in private rehabilitation programs and you are strongly motivated to reunite with your son. She also provides further detail in relation to your history including noting that you excelled academically and worked as a project manager on many building sites once qualified as a carpenter. It is clear from the letter that your family will offer you unconditional support in the community upon your release.
23Three further references were provided from long term family friends; Teresa Santilli, Maria Pia Mason and Rebecca Duval. Each of those reference speak to the strong family support you enjoy and that when you are not influenced by drugs and the associated lifestyle, you have the potential to be a contributing member of the community and a dedicated father to your son.
Sentencing considerations
24Mr Barker, who appeared on your behalf at the plea, outlined a number of matters in mitigation.
25First and foremost is your plea of guilty. No contested committal hearing took place in the Magistrates’ Court and the matter proceeded by way of straight hand up brief. You pleaded guilty to this offending in May this year after case conference hearings before me and in circumstances where other contested serious charges were withdrawn. In the circumstances I accept that your plea was entered at the earliest reasonable opportunity. Your plea of guilty has utilitarian benefit as it spares the time and resources of a jury trial and means that witnesses are not required to give evidence. Your plea is particularly significant in the context of the COVID-19 pandemic which has created significant backlogs in the criminal justice system and as such, the plea must be given greater weight in this instance.
26As to your prospects of rehabilitation, undoubtedly you must continue to remain drug free once you are released into the community. Like many in your situation, your potential to be a contributing member of the community will only be realised when you can demonstrate a sustained period of rehabilitation. You have begun that process in custody however you will require further support upon your release. Therefore while your prospects should be approached with some caution, given the supports you have in the community, in my view your prospects are reasonable.
27I take into account the fact that a large part of your remand has been served subject to COVID-19 restrictions. Access to rehabilitative programs has been limited as have personal visits. As such your time on remand has been more difficult and given the current state of the virus in the community, restrictions will remain for some time. I take these matters into account.
28I also take into account the principle of totality. While at the time of the plea hearing you had spent 379 days in custody on these matters, you have in fact been in custody continuously for some 747 days having been sentenced for a separate matter in September 2020.
29General deterrence, specific deterrence and denunciation of your conduct are prominent sentencing considerations. You have relevant prior convictions including a prior for being a prohibited person in possession of a weapon together with other weapon related charges. As such, you and others in your position must be deterred from engaging in similar conduct. Trafficking methylamphetamine in our community destroys lives and while you were also battling with addiction, your conduct nonetheless contributed to the ongoing drug trade placing other lives in the community at risk.
Sentence
30Daniel Piccolotto, on Charge 1, being a prohibited person in possession of a firearm, you are convicted and sentenced to 3 years imprisonment. On Charge 2, trafficking in a commercial quantity of a drug of dependence, you are convicted and sentenced to 3 years and 6 months imprisonment. On Charge 3, aggravated reckless exposure of an emergency worker to risk by driving, you are convicted and sentenced to 12 months imprisonment.
31On Summary Charge 4, dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to 2 months imprisonment.
32I direct that 6 months of the sentence on Charge 1 be served cumulatively on the sentence imposed on Charge 2. The remaining sentences will be concurrent. That makes for a total effective sentence of 4 years imprisonment. I direct that you serve 2 years and 9 months before becoming eligible for parole.
33Pursuant to s 18 of the Sentencing Act1991, I declare that 383 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
34Pursuant to s 6AAA of the Sentencing Act1991, if not for your pleas of guilty, I would have sentenced you to five years' imprisonment, with a non-parole period of 3 years and 6 months.
35In relation to Charge 3, pursuant to ss 89(1) and (2)(b) of the Sentencing Act 1991, any licence you hold will be cancelled and you are disqualified for a period of 2 years and that period commences today.
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