Director of Public Prosecutions v Sacco

[2021] VCC 1738

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00931

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL SACCO

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2021
DATE OF SENTENCE:	5 November 2021
CASE MAY BE CITED AS:	DPP v Sacco
MEDIUM NEUTRAL CITATION:	[2021] VCC 1738

REASONS FOR SENTENCE

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Subject:  Criminal Law Sentence

Catchwords: Trafficking in a drug of dependence - commercial quantity – Possess a prohibited weapon – Deal with property suspected of being the proceeds of crime – COVID-19 pandemic – Hardship in custody - s 5(2H) Sentencing Act.

Legislation Cited:     Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:Total effective sentence of 3 years and 3 months’ imprisonment – Non-parole period of 20 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. White	Office of Public Prosecutions
For the Accused	Mr S. Ranjit	Papa Hughes Lawyers

HIS HONOUR:

1Daniel Sacco, you have pleaded guilty to one charge of trafficking in a drug of dependence in a commercial quantity and also to relevant summary offences of possessing a prohibited weapon and dealing with property suspected to be proceeds of crime.  The maximum penalty for the charge of trafficking in a commercial quantity of methylamphetamine is 25 years' imprisonment; the maximum penalty for the summary offence of possessing a prohibited weapon is 240 penalty units or imprisonment for two years; and the maximum penalty for dealing with the suspected proceeds of crime is two years' imprisonment.

2You have admitted a criminal record which discloses some matters of relevance.  Principally, your criminal record involves offending which is sometimes described as family violence offending, including aggravated assault on a female and driving matters, but more relevant to this case are your convictions in April 2011 for cultivating a narcotic plant, being cannabis, and also your finding of guilt in 2009 for cultivating a narcotic plant.  Those matters have some relevance, as they indicate the pathway for you of how it was that you came to find yourself at the interface with much more serious drug offending.

3The facts of the matter are set out in the Summary of Prosecution Opening for Plea, which was Exhibit A on the Plea and forms part of these reasons for sentence.  I will not refer to it in detail.

Summary of offending

4On Saturday 22 August 2020, at around 9.55 pm, you and another man were observed by police, who were patrolling the area, walking on the western side of Federation Way in Wahgunyah.  They noticed you because you were in an area that is not often used by pedestrians and it looked suspicious, so police watched you and saw you cross to the eastern side of Federation Way.  They saw that you were wearing a backpack.

5The police pulled up and asked you to remove your backpack and place it on the ground.  When questioned, you made admissions to it containing drugs, identifying the type of drug as ‘ice.’  Your backpack was opened and examined at the scene and found to contain a plastic shopping bag which contained a sandwich bag, which in turn contained a large quantity of a white crystal substance which was believed at the time to be methylamphetamine, and so it turned out to be.  When it was later analysed it was found to be a substance containing methylamphetamine and weighing 222.6 grams.  Also located in the backpack was a toiletry bag containing $9,300 and a metal extendable baton.  There was further cash seized from your wallet in the sum of $1,040.  The total amount of cash seized was $10,340.

6You were conveyed to the police station, interviewed, and effectively made admissions to the possession.  The prosecution case is that you were possessing for the purposes of sale, which is evident from the circumstances in the sense that it is clear from all of the circumstances that you were involved in the commercial movement of the drugs.  You have been remanded in custody since that time.

Personal circumstances

7I was told by your counsel that you are now 42 years of age.  You were 41 at the time of the offending. 

8You were born and raised in Wangaratta.  You have a younger brother who owns a successful cleaning business in Wangaratta.  Your mother and father were married for some 40 years until your father passed away, suffering a heart attack three years ago.  I was told that he died in your arms and, understandably, that was a very traumatic experience for you and that trauma has stayed with you and had its consequences, as borne out by the psychological report of Warren Simmons dated 3 September 2021, which was referred to and relied upon by your counsel.

9You completed Year 10 at Wangaratta High.  You held various employment positions as a labourer, machine operator and truck driver.  You were working on a casual basis for your brother's cleaning business prior to your remand.

10You have three children aged 16, 13 and nine from your first relationship, which ended approximately nine years ago, and I was told that you continue to have an amicable relationship with your former partner and children.  You have an infant daughter from your relationship with Danielle.  You have been in that relationship for the past two years and your daughter is four months, or thereabouts, of age.  She was born whilst you were on remand and you are yet to meet her in person and that of course has been particularly burdensome for you and been a factor which has made your remand to date extremely stressful and onerous.

11You have been in custody for 440 days.  That experience in custody has been during the COVID-19 pandemic.  The effects of that pandemic experience on those in custody are well known.  In particular, visits have been non-existent.  There have been further restrictions on your movements in custody and also the opportunity for you to engage in rehabilitative programs or simply recreational type programs that assist with the custodial experience.

12I take into account the fact that your experience in custody for around 440 days has been more onerous than it otherwise would be due to the pandemic; also due to the birth of your daughter and the limitations on seeing her, which stem from the pandemic as well, of course.  In that context, it is more than worthy to note that those 440 days are your first experience of custody. 

13One of the positives that stem from that period of custody is that I am told that you have been drug free for over 12 months and there were some urine analysis results supporting that submission tendered on your plea and I accept that that is a start point for you, moving forward, which bodes well for your prospects of rehabilitation.

14The psychological report from Mr Simmons referred to a likely diagnosis of post-traumatic stress disorder in relation to the passing of your father, stemming from those circumstances that I have outlined which involved you attempting to revive him during the event, and you have not received any form of treatment in respect of that.  I pause to note that it is not a formal diagnosis, of course, and I do not treat it as such.

15I was told that you have used your time in custody well by obtaining employment as a billet in your unit and enrolling into an auto-mechanics course. Although, as I have said, due to the pandemic, there is limited access to courses and treatment that are otherwise available in custody.

16Your drug use, I was told, has progressed over the years from principally being one involving cannabis consumption to moving on to amphetamine and methylamphetamine substances, which increased particularly from the time of the passing of your father, and the point was made that there is a link there in relation to the stress and distress that arose as a result of that event which at least increased or hastened your descent into drug use.

Gravity of offending

17Submissions were made about the circumstances and gravity of the offending.  Of course, having regard to the maximum penalty, the offence of commercial trafficking is a very serious offence right at the top of the ledger.  Notwithstanding that, there is a range within that offence depending on the circumstances.  Your counsel pointed out that there are a number of circumstances that would make a single charge of trafficking far more serious and grave than the circumstances of your offending and that point is inescapable in every case.  Your counsel points out that it is a single date offence that is put on the basis of possession for sale.  There is no surrounding evidence or aspects of your offending that point to any connection with any wider criminal organisation or significant enrichment.  It is not a between dates charge, as we often see in relation to someone in the business of trafficking. 

18One can find almost an innumerable list of aggravating circumstances or circumstances of different offending that are not present in your case.  I have got to assess your offence.  All of the circumstances in your offence do support an argument that you have, over a period of time, drifted into more serious drug use, more serious drug offending, and at this point in time were involved, as I say, in the commercial movement of a commercial quantity of methylamphetamine, but not a very sophisticated example of that activity, as is borne out by the facts.

19The submission was made by your counsel that it does not fall at the highest end of seriousness or the most serious example of the type of offending and I certainly agree with that.  It is, for commercial trafficking, towards the lower end and, to a significant degree, the quantity is relevant to that assessment.  The mixed quantity you were in possession of does not breach the commercial threshold.  It was upon analysis of that mixed quantity, based on the purity, that on a pure analysis you were in possession of methylamphetamine that exceeds the commercial quantity for pure methylamphetamine.  That context is relevant also to assessment of the significance of your plea of guilty and the mitigatory effect of it. 

Other considerations

20It was submitted that there was a triable issue in relation to the requisite state of mind for trafficking in a commercial quantity and I accept that there was such a triable issue.

21The matter first came before me as a case conference and it was adjourned on several occasions.  That being the issue, this matter would have headed for trial on the issue of intent but for your decision to plead guilty.  Now, you have pleaded guilty and acknowledged the elements of the offence, but I accept that there was at least a triable issue in relation to that issue of intent.  What I mean by that is any defence run or trial run on the basis of that issue, would not be forlorn.

22It was submitted that you entered a plea of guilty at the earliest opportunity.  In all of the circumstances of the case, it is a very significant plea both in the context of what I have said in relation to the triable issue and the history of the case conference, where I urged either side to adopt a pragmatic solution to the impasse. So in that context, I do regard your plea as very significant.  It has greater significance in the context of the pandemic, given that trial lists in this state are in a state of crises and have been for some time. I first used that phrase in relation to trial lists in this state in August last year and it is obvious to all that the situation has not improved.

23Your case, given the charge of commercial trafficking being a Category 2 offence, engages s 5(2H) of the Sentencing Act and submissions were made by your counsel in relation to that.[1] The effect of s 5(2H) in your case is that I am unable to impose a combined custodial and community corrections order. As I had indicated, I may have considered imposing a CCO at an earlier stage of this proceeding. I am unable to do so unless I find that there are substantial and compelling circumstances that are exceptional and rare that justify not making an order under Division 2 of Part 3 and I am referring to s 5(2H)(e) of the Sentencing Act.

[1]Sentencing Act 1991 (Vic) (“Sentencing Act”).

24In making that analysis as to whether there are compelling circumstances, I must regard general deterrence and denunciation of your conduct as having greater importance than the other purposes set out in s 5(1).  I must give less weight to your personal circumstances than to other matters, such as the nature and gravity of the offence, and I must not have regard to your previous good character, an early guilty plea, or prospects of rehabilitation, or parity with other sentences.  I also must have regard to Parliament's intention that in sentencing an offender for a Category 2 offence, only an order under Division 2 of Part 3 should ordinarily be made and whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.

25Your counsel relied upon the following in combination in urging me to be satisfied that there are substantially compelling circumstances that are exceptional and rare. 

-The strength of the Crown case - and what I take that part of the submission to be referring to is what I have already referred to in relation to the context of the plea in relation to the strength of the Crown case. 

-The burden associated with being remanded during the global pandemic,

-Your plea of guilty during the pandemic,

-Your limited prior history and first time in custody,

-The delays the matter would have faced proceeding to trial - all of those matters are relevant matters to consider in relation to your case, and also in relation to this question of compelling reasons. 

Having regard to them, however, I am not satisfied that they meet the test in combination of compelling reasons that are exceptional and rare.

26I am of the view that a community corrections order of some length following a further period in custody would provide a better structure than a head sentence and non-parole term- a more suitable structure for you moving forward, not just for your rehabilitation, but also one that involves court supervision.  Whilst I am of the view that that would have great benefit in the sentencing exercise in your case it is simply not open to me because Parliament has decided that in order to go down that path in your case I would have to be satisfied of compelling reasons, as I have set out, and I considered it carefully and I am just not so satisfied in relation to the matter.

27I have had regard to general deterrence.  General deterrence is significant in matters such as this.  It is particularly relevant where cases of commercial trafficking, which are difficult to detect and can wreak such havoc on the community, are engaged in. 

28In your case, I accept that the clang of the prison door has had a salutary effect, and particularly given you have not been in custody before and because of your personal circumstances, including your age, I am not satisfied that specific deterrence is prominent in the sentencing exercise for you. However, general deterrence and denunciation remain important factors in your case. 

Sentence

29I sentence you as follows, Mr Sacco.

30In relation to Charge 1, being trafficking in a commercial quantity, you are sentenced to be imprisoned for three years and three months.

31In relation to the relevant summary offence of possess prohibited weapon, you are sentenced to be imprisoned for one month.

32In relation to dealing with property suspected to be proceeds of crime, you are sentenced to be imprisoned for two months.

33Those sentences are to be served concurrently with the head sentence.  I set a non-parole period of 20 months.

34I declare, pursuant to s 18 of the Sentencing Act, that you have served - is it 440 days?

35MR WHITE:  Yes, Your Honour, that's my record of it.

36HIS HONOUR:  All right.

37MR RANJIT:  Yes, Your Honour, I agree with that - his number as well.

38HIS HONOUR:  Thank you, Mr Ranjit.  You have served 440 days of pre-sentence detention.

39But for your plea of guilty, pursuant to s6AAA, I declare that I would have sentenced you to four and a half years' imprisonment with a non-parole period of two and a half years.

40Are there any other orders sought?  Is there any disposal or forfeiture?  There is, yes.  I make the disposal order and the forfeiture order sought.  I'll sign those documents now.  All right.

41So, Mr Sacco, I'm sure your counsel will explain the effect of that sentence to you.  You have a non-parole period of 20 months less the 440 days of pre-sentence detention.  I'm not sure what date then you'll be eligible for parole, because other administrative issues come into play, but Mr Ranjit can discuss that with you further.  All right.  Any other matters, gentlemen?

42MR WHITE:  Not from my end, Your Honour.  Thank you.

43HIS HONOUR:  All right, we'll adjourn the court.

44MR RANJIT:  Nothing further from me.  Thank you, Your Honour.

45HIS HONOUR:  Thank you.

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