Director of Public Prosecutions v Rocco (a pseudonym)

[2022] VCC 1963

IN THE COUNTY COURT OF VICTORIA Revised
Un-Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ARNO ROCCO (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2022
DATE OF SENTENCE:	7 November 2022
CASE MAY BE CITED AS:	DPP v Rocco (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1963

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:             Sentence – trafficking drug of dependence – possession drug of dependence – unauthorised possession of trafficable quantity of firearms – handle stolen goods – possess cartridge ammunition without a licence – deal with property suspected of being proceeds of crime – possess prohibited weapon – possess schedule 4 poison – plea of guilty – rehabilitation

Legislation cited: Sentencing Act 1991 (Vic) ss 6AAA, 18(4)
Sentence:                 Drug and Alcohol Treatment Order for 38 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Brennan	Office of Public Prosecutions
For the Accused	Mr D. Sala (25 October 2022) Ms R. Parker (7 November 2022)	Galbally Parker Lawyers

HIS HONOUR:

1Arno Rocco[1], you have pleaded guilty to:

·        One charge of trafficking in a drug of dependence (Charge 1), for which the maximum penalty is a term of imprisonment of 15 years;

·        Two charges of possession of a drug of dependence (Charges 2 and 3), for each of which the maximum penalty is a term of imprisonment of five years;

·        One charge of unauthorised possession of a trafficable quantity of firearms (Charge 4), for which the maximum penalty is a term of imprisonment of 10  years; and

·        One charge of handling stolen goods (Charge 5), for which the maximum penalty is  a term of imprisonment is 15 years.

[1]A pseudonym.

2You have also pleaded guilty to summary charges related to:

·        Possession of cartridge ammunition without a licence (Summary Charge 6), for which the maximum penalty is 40 penalty units;

·        Dealing with property suspected of being the proceeds of crime (Summary Charge 29), for which the maximum penalty is two years imprisonment;

·        Possessing a prohibited weapon (Summary Charge 24), for which the maximum penalty is a term of imprisonment of two years; and

·        Possessing a schedule 4 poison (Summary Charge 28), for which the maximum penalty is 10 penalty units.

3Tendered on the Determination Hearing as Exhibit 1 was an Amended Summary of Prosecution Opening, which set out the agreed facts of your offending.  In brief, the circumstances of your offending were as follows.

4

At 6:34am on 8 September 2021, police executed a search warrant at

Derrimut Street, Albion, where you were residing with your two co-accused,

Ashlee Egan[2] and

Susie Jovic[3].  You were directed by police to exit the property.  Police then saw you throw a black satchel bag over the fence into the neighbouring property before you left the property. 

[3]A pseudonym.

5Once outside, you disclosed to police that there was a firearm on the property.  Police entered the property and you directed them to the firearm in the front office. 

6Police searched the premises and located the following items across the front office, spare room, bedroom, master bedroom, rear shed, and in the black satchel recovered from the front garden of the neighbouring property: 

·        209.4 grams of mixed methamphetamine of various purity (Charge 1);

·        51.1 grams of mixed MDMA of various purity (Charge 1);

·        441.8 grams of cannabis (Charge 2);

·        13.9 grams of heroin (Charge 3);

·        12.7 grams of buprenorphine (Charge 3);

·        22.8 grams of 1,4-Butanediol (Charge 3);

·        4.1 grams of dimethyltryptamine (Charge 3);

·        Less than 0.1 grams of psilocybin psilocin (Charge 3)

·        Less than 2 grams of diazepam (not charged);

·        Sildenafil and tramadol (Summary Charge 28);

·        $222,805 in cash (Summary Charge 29);

·        Various trafficking paraphernalia;

·        Various cartridge ammunition and small calibre ammunition hidden in various containers (summary Charge 6);

·        Registration plates AQG-524 (Charge 5);

·        Two samurai swords in sheaths (Summary Charge 24);

·        Two slingshots (Summary Charge 24);

·        A crossbow and nunchakus (Summary Charge 24);

·        .45 semi-automatic handgun with a loaded magazine (Charge 4);

·        .22 ruger semi-automatic with loaded magazine (Charge 4); and

·        Antique firearm (Charge 4).

7Interrogation of your mobile phone, for which you provided police the access code, revealed photos of Tickbox handwritten notes and large bundles of cash. 

8Your DNA was located on the vacuum sealed and zip lock bags containing various drugs of dependence.

9Following the search of your property, you were arrested and transported to Sunshine Police Station.  A Record of Interview was commenced, but you were deemed unfit for interview due to your drug induced state and the interview was ceased.

10A further police interview was conducted on 1 November 2021, during which you gave a no comment interview. 

11You were remanded in custody on 8 September 2021 and were released on bail on 14 October 2021. You are currently living at your parents' address.

12The matter resolved in July 2022 before the adjourned contested committal hearing, and it then proceeded by way of a straight hand-up brief.  I accept that resolution discussions had begun prior to that date and your plea should be treated as an early plea. 

13

On 13 September 2022, the matter was adjourned into the Drug and Alcohol Treatment Court (DATC) for a Determination Hearing, which was heard on

25 October 2022.

14Exhibit 4 on the Determination Hearing was a DATC Clinical Advisor Assessment Report by Harry Howe, dated 6 October 2022.  Exhibit 5 was a DATC Case Management Assessment Report by Megan Kew, of the same date.  I also received a letter from your GP (Exhibit 6RA), confirming your commencement on opioid substitute pharmacotherapy at Healthline Pharmacy earlier this year, and I received your Criminal Record. 

15Together, these reports and records set out your personal narrative, your substance abuse history, and your forensic history.  They identified your challenges and relevantly set out treatment pathways and recommendations.

16I turn now to your personal circumstances. 

17You were born in September 1962. You are now 60 years of age, and you were aged 58 at the time of this offending.  You are the eldest of three children to Italian migrant parents.  You grew up in the northern suburbs of Melbourne and report no childhood trauma.  You left school at the age of 15 and commenced, but did not complete, a panel beating apprenticeship.  Over the years, you have worked intermittently in the automotive trade and other casual trades. However, your employment prospects were always secondary to your chronic substance use. You have been unemployed since 2007.

18

You have had significant relationships in your life and have three children. You still maintain a relationship with the eldest two; their mother passed away in 2016 from cancer. You have no relationship with your youngest child, an

18-year-old daughter.  You also report a history of problematic gambling behaviour. 

19You began using drugs “recreationally” from your early 20s onwards.  You report regular and problematic substance use from your mid to late 30s.  Since that time, you have smoked both methamphetamine and heroin on a daily basis.  You have never been an intravenous drug user of either drug. 

20Following your arrest and the grant of bail, you were placed on opioid substitution therapy (Exhibit 6RA).  You now describe feeling “like a fog had lifted” following your painful heroin withdrawal process, which occurred in a custodial setting following your arrest.  You report using methamphetamine on eight or nine occasions since your arrest, and  your frankness in this regard is noted.

21Over the past 12 months, you have regularly engaged in AOD counselling sessions with Ms Amanda Brown.  When asked what had assisted you to abstain from regular use over this period, you identified that you had moved back in with your mother, you had reconnected with your family, and you have begun to enjoy life without drugs (Exhibit 4).

22

Your Criminal Record goes back to 1984, when you were fined for possessing an unlicenced shotgun.  Over the years, you have been dealt with for other firearms offending, assault, handling stolen goods, and possession and trafficking of drugs of dependence. You have been dealt with by fines, suspended sentences or

community-based terms of imprisonment.  There have been large gaps between your Court appearances; your last matter was in 2008. 

23You do not fall to be sentenced again for matters for which you have already been dealt with by the courts, however your criminal history is of relevance to my assessment of the need for specific deterrence, protection of the community, your prospects of rehabilitation and your moral culpability for the offending in front of me. 

24Mr Howe (Exhibit 4) was of the opinion that at the time of the offending you would have satisfied the diagnostic criteria for both opioid and stimulant use disorder, severe in nature.  He was satisfied that the treatment and supervision component of a Drug and Alcohol Treatment Order (DATO) would be an appropriate intervention to address those disorders and that there were no significant concerns regarding your capacity to participate in such an Order.  He set out treatment recommendations.

25Ms Kew (Exhibit 5) noted your frank account of this offending, including the protective reason for your possession of a loaded firearm.  You described the then home of you and your two co-accused as “a trap house”, where all of you were actively using.  You appeared to struggle with the notion of the harm that your offending was causing to others.  You did, however, note that your offending was “a waste of my time and my life”, and that you were embarrassed at your presentation in the video cam of your arrest, and that you felt “blessed to be arrested when you were as otherwise you could've died, overdosed, or been hurt”,  noting that, “when you were in haze or drugs, things seemed different”.

26You reported a good relationship with your mother after years of separation due to your drug use.  Your father passed away in 1990.  Your mother has been and remains a support for you and you are currently living in her home.  All of your friends are drug associates and, thus, finding pro-social contacts and relationships will be a challenging goal for you. 

27Whist Ms Kew did raise some concerns around the nature of your offending and other matters, she concluded that:

“Mr [Rocco] has stable accommodation with pro-social family support in the community, and although this address falls outside the catchment area, transport remains stable via access to his licence and car.  He has also had limited opportunity to address his offending behaviour and substance misuse in a meaningful, multifaceted program such as a Drug and Alcohol Treatment Order.”

These factors led Ms Kew to recommend you for placement upon an Order.

28You gave evidence on the Determination Hearing.  You described a life of always chasing drugs and being caught on a wheel that has been turning for so long.  Heroin was apparently your drug of concern at the time of your arrest.  You describe a horrifying cold turkey following your remand.  You currently recognise the need to be on guard at all times to prevent relapse, and you now appreciate your family and have re-connected with two of your three children. 

29The particular purposes of a DATO are:

·        to facilitate the rehabilitation of the participant offender by providing a judicially supervised therapeutically oriented integrated drug and alcohol treatment and supervision regime;

·        to take account of the participant offender’s drug or alcohol dependency;

·        to reduce the level of criminal activity associated with drug or alcohol dependency; and

·        to reduce the participant offender’s health risks associated with drug or alcohol dependency. 

30Mr Sala, Counsel on your behalf, submitted that such a disposition was appropriate in your circumstances and in the circumstance of this offending. 

31Ms Overend, Counsel on behalf of the Director, accepted your dependence, its contribution to your offending, and did not oppose such a course if the Court deemed it appropriate. 

32Mr Rocco, those of us who sit in the criminal courts day after day are aware of this simple truth: drugs are tearing out the heart of our community.  Our community is losing a generation and those who participate in this evil trade can expect to be severely punished if and when they come before the courts.  What might start out as a fun Saturday night, what might be regarded as recreational consumption that can be controlled, can quickly spiral into the horrors of addiction. In that addiction, many lose everything, some indeed lose their lives.  Your own life experience must clearly show you that three decades of your life has been wasted, surrendered to the altar of your dependence. 

33The trafficking offence to which you have pleaded guilty is a serious offence, as is clear from the maximum penalty of 15 years’ imprisonment which Parliament has seen fit to impose.  Quantity, role, duration of offending, and the motivation for the offender's involvement in the offending are all important indicators of offence seriousness. 

34Charge 4, unauthorised possession of a trafficable quantity of firearms, is likewise a serious offence.  The law serves the community interest in maintaining proper systems for the licencing and regulation of the possession, use, disposal and registration of firearms.  It is designed to protect against the risks that come with the accumulation of weapons illegally and the difficulty then in the detection of those who chose to possess them. 

35The quantity of methamphetamine found at your property was in excess of the threshold for commercial trafficking.  The charge to which you pleaded guilty reflects the Prosecution’s concession that they could not prove the relevant intent. However, this is a serious example of this offending.  Your house was a complete drug den, containing a wide variety of drugs of dependence.  I am quite satisfied the substances in Charges 2 and 3 were possessed by you for a purpose related to trafficking.  I am also satisfied on the evidence in front of me that you were selling to other retailers, as well as users. 

36You engaged in this enterprise to support both your drug and other material needs.  You made the choice to protect yourself against the inherent and imagined dangers of practising such a trade by having a loaded .45 semi-automatic handgun at hand.  This speaks compellingly of the seriousness of your offending and your complete immersion in the drug world.  You gave no thought as to how your actions would impact on others.  Your moral culpability for this offending is, in my view, high. 

37In sentencing you, Mr Rocco, I must have regard to a range of different factors.  I must give effect to the principle of general deterrence, that is I must deter others from behaving as you did, and to specific deterrence, that is to deter you from ever repeating such offending.  I must consider the need to protect the community.  I must express the community's denunciation of your conduct.  I must take into account the effect of your crimes upon the community.  I must have regard to current sentencing practices and the statutory maximum penalties for the offences to which you have pleaded guilty.  I must ensure as far as possible that you are rehabilitated and reintegrated into society.  In short, I must try to balance your personal circumstances with the circumstances of your offending.  I must also pass no greater sentence than is necessary in all the circumstances of the case as I find them to be.

38These sentencing purposes are all still enlivened in your case.  Specific deterrence and the need to protect the community do loom large. However, if the Court is considering making a DATO then your rehabilitation and the protection of the community, to be achieved through your rehabilitation, have greater importance than those other sentencing purposes. 

39On all the material in front of me, I am satisfied on the balance of probabilities that:

·        you have a poly-substance dependency on heroin and methamphetamine;

·        your dependency contributed to the commission of the offending in front of me;

·        otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than four years; and

·        you are not charged with offending, nor are you subject to any order that would make you ineligible for a DATO.

40This is serious offending, Mr Rocco, offending which, in my view, would ordinarily sit towards the upper range of offending for which a DATO would be an appropriate disposition. However, you early plea of guilty brings with it the practical benefit of saving the community the time and expense of a trial.  It also indicates a willingness to facilitate the course of justice and your plea demands particular recognition in the time of the COVID-19 pandemic.

41You have the support of your mother and sister.  In both you are truly fortunate, as many people who come in front of this Court are alone and have no one to speak for them or stand with them. Often, for a family it becomes too painful to watch a loved one succumb to dependence.

42You now speak of the knowledge of your wasted years.  You are no longer a young man, Mr Rocco. By my calculation, you will be able to qualify for a pensioner's discount card in the not-too-distant future, and you are still using drugs.  You have, however, shown some progress during your time on bail, both in terms of your engagement in AOD counselling and your apparent successful placement on pharmacotherapy.

43In your evidence in front of me, you stated that you did not want to go back to where you were.  Well, I am prepared to provide you, Mr Rocco, with the opportunity to put those words into action. It is an opportunity, Mr Rocco, you would be well advised to grab with both hands and hold onto very tight.

44On Summary Charge 24, you are convicted and sentenced to a term of imprisonment of 35 days.  That term has already been served by way of Pre-Sentence Detention.  

45On Summary Charge 6, you are convicted and ordered to pay a fine of $1,250.

46On Summary Charge 28, you are convicted and discharged.

47On Charges 1 to 5 and Summary Charge 29, you are convicted and placed upon a Drug and Alcohol Treatment Order (DATO).

48A DATO has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts, which are as follows.

49The core conditions, which are that:

(a)   you must not commit, whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;

(b)   you must attend Drug Court when required by the Court to do so; 

(c)   you must report to the Melbourne Drug Court House within two clear working days after the Order is imposed; 

(d)   you must report to and accept visits from members of the Drug Court;

(e)   you must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;

(f)    you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;

(g)   you are not to leave Victoria without the permission of the Drug Court; and

(h)   you are to obey all lawful instructions from the Drug Court Team. 

50The core conditions will operate for 38 months, or until further order.

51The program conditions, which are that: 

(a)   you must submit for drug and alcohol testing, as directed; 

(b)   you must submit to detoxification or other treatments specified in the Order, as directed;

(c)   you must attend vocational, educational and employment programs, as directed;

(d)   you must submit to medical, psychiatric and psychological treatment, as directed;

(e)   you must not associate with Ashlee Egan and Susie Jovic;

(f)    you must reside at [omitted], Glenroy VIC 3048, for the duration of the Order or until further Order; 

(g)   you are subject to a curfew that you must remain at [omitted], Glenroy VIC 3048, between the hours of 9:00 pm and 6:00 am, which is required until further order;

(h)   you are to comply with an exclusion zone of the suburb of Albion;

(i)    you are not to use a drug of dependence without lawful authorisation;

(j)    you are to abstain from alcohol;  and

(k)   you must not attend Gaming Venues;

(l)    you must not gamble online or via any smart device;

(m)     you must continue to receive your suboxone therapy at Healthline Pharmacy or as directed by your GP Dr Afshan Mian of Coburg Medical Centre;

(n)   you are to do or not do anything else that the Drug Courts consider necessary or appropriate concerning:

(i)your drug and alcohol dependency; and

(ii)the personal factors that the Drug Court considers contributed to your criminal behaviour. 

[2]A pseudonym.

52These program conditions will operate for two years, or until further order. 

53OFFENDER:  I understand.

54HIS HONOUR: You are also waiving all rights of confidentiality of communications between the Drug and Alcohol Treatment Court, and all treatment providers, government agencies, authorities, and departments. 

55OFFENDER:  Yes, I understand.

56HIS HONOUR: The custodial part of the DATO is the term of imprisonment that I would have imposed had I not placed you on a DATO, and it is a term of imprisonment of 38 months. That is made up as follows:

57On Charge 1, a sentence of 27 months. 

58On Charges 2 and 3, an aggregate sentence of 8 months. 

59On Charge 4, a sentence of 16 months;

60On Charge 5, a sentence of 3 months; and  

61On Summary Charge 29, a sentence of 5 months.

62I order that three months of the aggregate sentence on Charges 2 and 3, six months of the sentence on Charge 4, and two months of the sentence on Summary Charge 29 run cumulative to each other and cumulative to the sentence on Charge 1. That makes a Total Effective Sentence (TES) of three years and two months (38 months).

63Pursuant to s 6AA Sentencing Act 1991 (Vic), had you not pleaded guilty you would have been sentenced to a TES of four years and eight months, with a non-parole period of three years and four months.

64I regard this example of trafficking as being a very serious example of the offending, having regard to the cornucopia of drugs that you had at your residence.  I also view the possession of the loaded firearms to be a serious matter because, by your own admission, they were there effectively for protection of the criminal business in which you were engaged. 

65Pursuant to s18(4), I declare that you have two days of Pre-Sentence Detention (PSD). That is arrived at by taking the agreed PSD of 37 days and removing the 35 days to which you have been sentenced on Summary Charge 24.

66Do you agree to being placed on a Drug and Alcohol Treatment Order, Mr Rocco?

67OFFENDER:  Yes, I do, Your Honour.