Director of Public Prosecutions v Presta

[2017] VCC 1645

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01178

DIRECTOR OF PUBLIC PROSECUTIONS

v

FABIAN PRESTA

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2017
DATE OF SENTENCE:	10 November 2017
CASE MAY BE CITED AS:	DPP v Presta
MEDIUM NEUTRAL CITATION:	[2017] VCC 1645

REASONS FOR SENTENCE
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Subject:Assisting an offender; traffick drug of dependence; possess a drug of dependence; possession of category A or B longarm

Catchwords:
Legislation Cited: Crimes Act 1951
Cases Cited:
Sentence:  3 years imprisonment with 22 month non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Gibson
For the Accused	Mr J. Williams Mr P. Smallwood

HER HONOUR:

Charges

1Fabian Presta, you have pleaded guilty to: one count of assisting an offender with the theft of a motor vehicle, for which the maximum penalty is ten years, or 1,200 penalty units; two counts of trafficking in a drug of dependence, for which the maximum sentence is 15 years; two counts of possess a drug of dependence, for which the maximum penalty is five years, and; three counts of possession of an unregistered Category A or B long-arm, for which the maximum penalty is two years or 120 penalty units for the first offence, and ten years or 1,200 penalty units for a subsequent offence.

2In addition, you have pleaded guilty to: the summary charges of possessing the proceeds of crime, for which the maximum penalty is a sentence of imprisonment of two years; committing an indictable offence on bail, which has a maximum sentence of 30 penalty units or three months; possess a prohibited weapon, which has a maximum penalty of 240 penalty units, or two years; fail to comply with a direction to assist under s.465AAA of the Crimes Act, which has a maximum sentence of two years, and possess ammunition, which has a maximum penalty of 40 penalty units.

Circumstances of offending

3The circumstances of your offending are set out in full in the prosecution opening, which will form part of this sentence.  In summary, with respect to Charge 1 of assist offender with the theft of a motor vehicle, the vehicle involved was a grey BMW.  This stolen vehicle was found displaying false numberplates on 16 February 2016.  It had been used by a member of the Comanchero outlaw motorcycle gang during the commission of an arson at the Kittens Gentlemen's Club located in Glenhuntly Road, Caulfield South. 

4The false numberplate was attached to the vehicle by double-sided tape.  An examination conducted by the Forensic Service Department fingerprint branch found your prints on the double-sided tape used to attach the false numberplates.

5In relation to Charge 2, trafficking in a drug of dependence, this relates to 9.6 grams of MDMA found by the police in a safe in the master bedroom of your unit in Tennyson Street in Carrum when the police executed a warrant on
17 November 2016.  A further 3.9 grams of MDMA in rock form and eight purple-coloured tablets weighting 2.2 grams were found in a vanity unit in the connected bathroom to the master bedroom.  Eight-hundred and forty-nine blue and white-coloured ecstasy tablets in a plastic vacuum-sealed bag found in a Nike sport bag in a wardrobe in the second bedroom of the unit, 14 ecstasy tablets of various colours weighing 3 grams, and 16 tablets of an unidentified substance weighing 6.7 grams found in a small safe disguised as a book in the garage.

6Summary Charge 21, possess a prohibited weapon, relates to the fact that when the police searched the wardrobe, they also located a Sinclair-brand pocket knife disguised as a bank card, designed to be concealed.

7Summary Charge 11 relates to the fact that you committed an indictable offence while on bail.

8Charge 3 of trafficking in a drug of dependence relates to 4.5 grams of cocaine which was found by the police in a safe in the master bedroom, in addition to 0.8 grams of cocaine found in a small glass vial in the lounge room.

9Summary Charge 7 relates to the sum of $510 in cash, which was found in a safe in the master bedroom.

10Charge 4 of possess a drug of dependence relates to methamphetamine that the police found inside the vanity unit in the connected bathroom to the master bedroom.  The police found a small press-seal plastic bag containing 0.4 grams of methamphetamine, and a large quantity of empty press-seal bags.  There was also 5.3 grams of methamphetamine in compressed powder form, and a glass bowl and sieve containing 1.6 grams.

11Summary Charge 23, failing to comply with a direction to assist, relates to the fact that after you were given an explanation by the police of s.465AAA, you refused to provide the police with the unlock code to your Blackberry mobile phone.

12When they searched the garage of your unit, police located more false numberplates, which relates back to Charge 1 of assisting an offender.  Police also found a red and black sports bag containing ammunition and other items connected to guns, including an empty magazine for a submachine gun, and a loaded magazine for an SRL military assault weapon.

13Summary Charge 9 relates to your possession of several hundred rounds of assorted calibre ammunition for rifles and shotguns.  Charge 8 on the indictment, prohibited person possessing an unregistered long-arm relates to the finding of a stock trigger mechanism for a double-barrel shotgun.

14Charge 6 relates to the police finding a savage-bolt-action centre fire rifle in a black and tan rifle bag, and Charge 7 relates to a Remington pump-action rifle found in a black rifle bag.  Investigations revealed that this rifle had been stolen during a burglary.

15Inside the black and tan bag, police also located a clear plastic bag and black pouch containing multiple rounds of ammunition for shotguns and rifles, which relates to Summary Charge 9, possess ammunition.

16Charge 5, possess a drug of dependence, being cannabis, relates to a small plastic bag containing a small amount of cannabis found in the garage concealed within a cooler bag. 

17Analysis of your phone revealed 135 SMS conversation streams containing 18,546 text messages.  Approximately 80 per cent of the conversation streams related to the trafficking of drugs of dependence, in particular cocaine and ecstasy. 

Personal circumstances

18Moving onto your personal circumstances, they were set out in a psychological report from Tim Watson-Munro.  Further details were contained in a report from Amanda Brown, a drug rehabilitation consultant with Lamberti Associates.

19You were born in Clayton, Victoria in February 1989.  You have a 17-year-old brother.  You attended Hampton Park Primary School and Lyndhurst Secondary College, where you excelled at sport, in particular soccer.  After completing your VCE, you were offered a sporting scholarship to study in America.

20Initially you studied at the Freed Hardeman University in Tennessee, before transferring to Waldorf College in Iowa.  When sporting scholarships were revoked, you applied to Minnesota State University, where you were successful in obtaining a non-sporting scholarship.  You graduated in 2012 with a Bachelor of Science and Sports Medicine.

21However, despite this promising start to your life, upon your return to Australia your qualifications were not recognised, and your lifestyle changed.  You commenced work at a gymnasium in Cranbourne as a consultant and personal trainer. It appears that your use of ecstasy and cocaine, which you were introduced to when you were 21, increased.

22When you were 23, your best friend introduced you to methamphetamine, which you used occasionally, but your drug use soon escalated to the extent where you used methamphetamine and cocaine on a daily basis.  Due to your involvement with drug culture, you were introduced to an adverse peer group, leading to the charges that are before the court.

23I note that while you were in Minnesota you met your partner Alyssa Smith, and prior to being placed in custody, you resided with her in a unit in Carrum Downs.  As a result of the search warrant conducted at your unit, Ms Smith was also charged with offences relating to drugs, including one of possessing drugs and the proceeds of crime.  She pleaded guilty in the Magistrates' Court, and was placed on a good behaviour bond for 12 months.  She was also ordered to pay $500 into the court fund, and attend the focused drug education program.

Psychological reports

24Following your arrest, you were able to detoxify while on remand.  When you were granted bail, you commenced drug counselling appointments with
Ms Brown and provided twice weekly urine drug screens.  Ms Brown gave evidence to this court that you had remained drug-free for the duration of the treatment, save for one positive urine screen, which you discussed with her.

25In her opinion, you have come a very long way in your recovery.  You have advanced insight into your condition, and you recognise what you would lose if you returned to drug use.  In her opinion, you were in a good position to build upon the work you had done with her, and you were now at a low risk of relapse into illicit substance abuse.

26Mr Watson-Munro reported that you expressed remorse for your addictions which appeared to be genuine.  In his opinion, your expectations of a stellar career through a sports scholarship in the United States were unfulfilled.  Compounding your problems, your qualifications were not recognised in Australia, and it was in this setting that you drifted into a pattern of escalating drug use involving cocaine and then ice.

Defence submissions

27In his plea on your behalf, your counsel submitted that, having regard to the objective gravity of your offending and the circumstances personal to you, that a combination sentence that did not require you to return to gaol could achieve all sentencing purposes.  Making this submission, he relied on the following matters: 

·your guilty plea and remorse;

·your otherwise good character as illustrated by your lack of prior convictions;

·the lack of pending charges;

·the references tendered on your behalf;

·the fact that you have spent a period on remand until you were released, and that you had used that time to reflect on your offending and to detox from drugs. 

28Your counsel placed particular emphasis on the steps you have taken towards rehabilitation since you were released on bail, including attending counselling with Ms Brown, providing regular drug screens, obtaining full-time work with CPK Stones as a sales consultant, completing a drug and alcohol awareness course, not associating with any members of any outlaw motorcycle gang, and complying with strict bail conditions and reconnecting with your family.

29With respect to your rehabilitation, he relied on Ms Brown's report, and the evidence that she had given to the court.  In particular, he relied on her opinion that you were now at a low risk of relapse to illicit substance abuse.

30References were provided from your mother, your aunt Andrea, a fellow employee of Stone consultants, your long-time friends Ricky Brandon and David Waldsmith.  The main substance of the references were that you now realised that you had let them down. You had disappointed your family and friends, you were very ashamed and sorry, and you are working hard to reform yourself and change your life around. 

31In her reference, your partner Ms Smith described you as doing a complete 180-degree turn.  She describes you as being the hardworking, motivated and intelligent man she had met back in 2012. 

32Your mother gave evidence, in which she detailed how you had been estranged from the family when they discovered your drug use.  While initially you denied abusing drugs, more recently you have opened up to your family about your drug use, and you informed them that you had no intention of returning to that lifestyle.

Sentencing remarks

33In sentencing you, I have taken all the mitigating matters referred to by your counsel into account.  I have given you a discount for your plea of guilty, as it saves the witnesses the trauma of giving evidence, and the State the cost of a trial.  I accept that you are remorseful, and that you are making real efforts to turn your life around.  I accept Ms Brown's opinion that due to your successful detox from drugs and drug treatment, you are at a reasonably low risk of relapse. 

34However, even accepting all the mitigating matters referred to by your counsel, I do not consider that a community corrections order is an appropriate sentencing disposition in this case.  Drugs cause great harm in the community, and it is apparent from the text messages on your phone that you were actively involved in selling them over an extended period of time.

35As the prosecutor pointed out, not only were you trafficking drugs, but a number of firearms and large amounts of ammunition were found on the premises rented by you.  It is most concerning to this court that you had weapons and ammunition in your garage.  Drugs and guns are a bad combination, and general deterrence is an important sentencing consideration in this case.  Would you please stand up?

Sentence

36On the charge of assist offender in the theft of a motor vehicle, you are sentenced to 12 months' imprisonment.

37On Charge 2 of traffic in a drug of dependence, being various drugs of dependence, you are sentenced to two years' imprisonment.

38On Charge 3 of traffic in a drug of dependence, being cocaine, you are sentenced to nine months' imprisonment;

39On Charge 4, possess a drug of dependence, being methamphetamine, you are sentenced to three months' imprisonment;

40On Charge 5, possess a drug of dependence, being cannabis-L, you are convicted and fined the sum of $200;

41On Charge 6, possession of an unregistered category A or B long-arm, you are sentenced to three months' imprisonment;

42On Charge 7, possession of an unregistered category A or B long-arm, you are sentenced to nine months' imprisonment;

43On Charge 8, possession of an unregistered category A or B long-arm, you are sentenced to six months' imprisonment;

44On Summary Charge 7, possess proceeds of crime, you are sentenced to one months' imprisonment;

45On Summary Charge 11, commit an indictable offence while on bail, you are convicted and fined the sum of $200;

46On Summary Charge 21, possess a prohibited weapon, you are sentenced to three months' imprisonment;

47On Summary Charge 23, failed to comply with a direction pursuant to s.465AAA, you are sentenced to three months' imprisonment;

48On Summary Charge 9, possess ammunition, you are convicted and fined the sum of $600.

49The base sentence is the sentence of two years on Charge 2 of trafficking.  With respect to the charges on the indictment, I cumulate:  four months of Count 1; two months of Count 3; three months of Count 7, and; one month of Count 4, on the base sentence of two years.

50With respect to the summary offences, I cumulate: one month of the sentence on Count 21, and one month of the sentence on Count 23 on the base sentence of two years.  This means that the sentence is a sentence of three years' imprisonment.

51I fix a non-parole period of 22 months.  But for your plea of guilty, you would have been sentenced to four years and six months to serve three years.  You may sit down.

52Is there anything arising out of that?

53MR SMALLWOOD:  Your Honour, in relation to pre-sentence detention,
Mr Presta has spent 49 days in custody, not including today.

54HER HONOUR:  Forty-nine days will be reckoned as time served.

55MR SMALLWOOD:  As the court pleases.

56HER HONOUR:  There are forfeiture orders in this case, and I will make those orders - I presume they are by consent?

57MR SMALLWOOD:  Yes Your Honour, not opposed.

58HER HONOUR:  In relation to disposal orders, also not opposed I presume?

59MR SMALLWOOD:  That is so, Your Honour.

60HER HONOUR:  Are there any other orders sought in this case?

61MS YELEZ:  No Your Honour.

62HER HONOUR:  Yes, all right, I will stand the court down.  Thank you.

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