Director of Public Prosecutions v Sacco
[2021] VCC 1056
•2 August 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00187
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL SACCO |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 July 2021 |
DATE OF SENTENCE: | 2 August 2021 |
CASE MAY BE CITED AS: | DPP v Sacco |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1056 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: trafficking in 1,4‑Butanediol – cultivate cannabis L – possess methylamphetamine – deal with property suspected of being the proceeds of crime – commit indictable offence whilst on bail – cultivation of cannabis and possession of methylamphetamine not related to trafficking – offending on one day – long history of drug abuse – efforts at rehabilitation at Odyssey– Renzella time
Legislation Cited: ss 71AC(1), 72B, 73(1) Drugs, Poisons and Controlled Substances Act 1981; s 195 Crimes Act 1958; s 30B Bail Act 1977
Cases Cited: Akoka v The Queen [2017] VSCA 214
Sentence: Aggregate total effective sentence of imprisonment of 123 days and 18 month Community Correction Order with conditions. Forfeiture and disposal orders.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Dickens | Solicitor for the Office of Public Prosecutions |
For the Accused | Ms A. Burnnard | Fitzroy Legal Service |
HIS HONOUR:
1Daniel Sacco, you have pleaded guilty to three charges on Indictment No.K12477238.1. You have also pleaded guilty to summary charges 10 and 11 transferred to this court.
2The charges are as follows:
Charge 1, at Heidelberg West on 22 September 2019, you trafficked in 1,4‑Butanediol.
Charge 2, at Heidelberg West on 22 September 2019, you cultivated a narcotic plant, namely cannabis L.
Charge 3, at Heidelberg West on 22 September 2019, you possessed a drug of dependence, namely methylamphetamine.
Summary Charge 10, at Heidelberg West on 22 September 2019, you dealt with property suspected of being the proceeds of crime.
Summary Charge 11, at Heidelberg West on 22 September 2019, you committed an indictable offence, namely trafficking of 1,4‑Butanediol, whilst on bail.
3The circumstances of your offending are set out in the summary of prosecution opening dated 3 May 2021, marked Exhibit P1. No issue was taken by your counsel, Ms Burnnard, as to its contents.
4On 21 September 2019, at approximately 11.25 pm, Senior Constable McPherson and Constable Rose were on patrol duties outside a factory complex at 1 Northern Road, Heidelberg West. There they saw a black Hyundai bearing cloned registration plates parked across the factory driveway. Police checked the car and as they were doing so, they heard voices coming from factory number 2/1 Northern Rd. They also saw that the lights were on in that factory.
5Approximately 15 minutes later they saw you and co-offenders Samantha Farley and Mason D'Andrea leave the factory premises. Police stopped and spoke to each of you. You were then arrested in relation to the stolen car. The three of you were then taken to the Heidelberg police station.
6Police returned to the factory premises at 4.39 am on 22 September 2020 with a search warrant.
7During the search a large number of items were found including:
•nineteen Victorian driver's licences, six Medicare cards, three working with children check cards, one Visa card, one health care card, one Swinburne University card and one Caltex Star Card;
•$2,450 in cash;
•a marijuana horticultural book;
•a bottle containing 10.1 g of 1,4‑Butanediol;
•a 4 litre bottle containing 3,276.4 grams of 1,4‑Butanediol;
•a bottle containing 498.3 grams of 1,4‑Butanediol;
•three cannabis plants; and
•a snap-lock bag containing 4.7 grams of methylamphetamine, at a purity of 18 per cent.
8The total weight of the 1,4‑Butanediol found in your possession was 3,784.8 grams. The purity of that drug was not determined.
9When interviewed you made partial admissions, including that you and D'Andrea rented the factory for the purpose of pursuing hobbies such as fixing motorbikes. You also admitted to being a user of GHB, and that you cultivated the cannabis for your personal use.
10You were charged and remanded in custody until you were granted bail on 10 February 2020. Your pre-sentence detention is agreed at 113 days.
11I was informed of the charges and sentences received by your co-offenders. They faced different charges and it was not submitted that there should be parity between the sentence I impose on you and the sentences imposed on your co-offenders.
12Your case was first listed before me for a sentence indication hearing. After hearing submissions from both the learned prosecutor, Ms Dickens, and Ms Burnnard, I determined that I would not require you to serve any further term of imprisonment. I had you assessed for a community correction order.
13For the purpose of the plea hearing, Ms Burnnard filed helpful written submissions dated 8 July 2021. They are marked D1. Those submissions were supplemented with oral submissions at the plea hearing on 19 July, and a number of documents were tendered on your behalf and marked Exhibits D2 to D9.
14The offences to which you pleaded guilty carry the following maximum penalties:
·Trafficking in a drug of dependence - 15 years' imprisonment.
·Cultivating cannabis - 15 years' imprisonment unless I am satisfied that your cultivation was not for the purpose of trafficking. If I am so satisfied, the maximum penalty is then one-year imprisonment.
·Possessing methylamphetamine - five years' imprisonment unless I am satisfied that your possession was not for the purpose of trafficking. If I am so satisfied, the maximum penalty is then one-year imprisonment.
·Dealing with property suspected of being the proceeds of crime - two years' imprisonment.
·Committing an indictable offence whilst on bail - three months' imprisonment.
15In relation to the cultivation and possession charges, having regard to their quantities, your history of drug abuse, and the absence of any other evidence to suggest trafficking in those drugs, I am satisfied, on balance, that you did not cultivate the cannabis or possess the methylamphetamine for any purpose related to trafficking in those drugs.
16You had in your possession for the purpose of trafficking a very significant quantity of 1,4‑Butanediol. The sentencing regime for drug offending is quantity based and the quantity you possessed is in fact much greater than the commercial quantity of 2 kilograms applicable to that drug. However, you are not charged with trafficking in not less than a commercial quantity of that 1,4‑Butanediol.
17I also have regard to the fact that all your offending is in respect of one day only.
18Ms Burnnard submitted that you have a very long history of drug abuse including of methylamphetamine, GHB and cannabis. At the time of your arrest, you instructed Ms Burnnard, you were using on a daily basis approximately 50 to 100 mls of GHB, 1.5 to 1.7 grams of methylamphetamine, and a few grams of cannabis.
19While acknowledging the seriousness of your offending, particularly in relation to the trafficking charge, Ms Burnnard focused on your efforts at rehabilitation since your arrest as justifying a sentence that does not require you to serve any further time in gaol. Ms Dickens, very fairly in my opinion, did not take issue with Ms Burnnard's sentencing submission. Notwithstanding the seriousness of the trafficking charge, I accept Ms Burnnard's submission that I should not require you to serve any further time in custody. In so doing I have had regard to a number of considerations, including the concession made by the learned prosecutor.
20Following your arrest for the offences before me, you were remanded in custody. You spent some 143 days in custody, of which 113 days are available to be declared in relation to these charges. You were then granted bail on 10 February 2020. It was a condition of your bail that you reside at Odyssey House. You complied with your bail conditions, you have not re-offended, and you continue to reside at Odyssey House.
21Tendered on your behalf is a letter dated 22 April 2021 from Joshua Burnside, Senior Alcohol and Other Drug Therapist at Odyssey House. He states you have, in your time at Odyssey House, demonstrated their values of respect, concern, honesty, trust and love. You have remained drug free as evidenced by random urinalysis test results. You completed level 1 of the program on 9 July 2020 and then commenced level 2. Your drug rehabilitation program included attending group therapy sessions twice a week. As a level 2 participant you were able to take on increased responsibilities and leadership roles. On 6 November 2020 you moved to level 3. Mr Burnside states this is a significant achievement in your treatment and shows you are demonstrating positive changes in behaviour and values. You continued to attend weekly group therapy.
22During your time at Odyssey House you had regular contact with your eldest child, who is living with your mother, and you began work with Relationships Australia to have contact with your two youngest children and to rebuild your relationship with their mother. You completed the course 'Tuning in to Kids' provided by Odyssey's Family Services Team. At the time Mr Burnside wrote his letter, you were working in the kitchen and had been assigned the coordinator's role. In that role you were responsible for preparing and overseeing food ordering as well as the daily cooking and meal preparation for residents and staff. In your role you not only supported the kitchen team, but you demonstrated leadership, responsibility and reliability. This, according to your counsel, is a significant achievement given that you were not able to cook before you entered Odyssey House.
23A further letter from Mr Burnside, dated 17 May 2021, was tendered on your behalf. That letter sets out the requirements of each level for all residents at Odyssey House. He states you completed level 3 on 7 May 2021. You then progressed to the leaver's stage of the program. This marks the process of transition back into the community, including setting goals for future accommodation and employment whilst still being a resident at Odyssey House. You continue to participate in weekly therapy and contribute to the running of the community. Again, you have been found to be reliable, trustworthy and hard working. Mr Burnside states you have acknowledged your responsibility for your offending and have expressed remorse and a strong commitment not to reoffend.
24A letter from Jayde Scibberas, dated 2 July 2021, was also tendered on your behalf. That letter sets out information regarding the program offered by Odyssey House. I will not set out all of the helpful information but note that it is a residential program that imposes on residents a number of restrictions and expectations. For example, residents are required to live at the facility, and they are accounted for every two hours between 7 am and 10 pm, as well as at bedtime at 10 pm and wake-up at 7 am. For the first 12 months of the program all residents attending off-site appointments or program activities must be accompanied by a senior resident. Greater independence and responsibilities are given after 12 months. Odyssey House is also a currency-free community, meaning residents do not have any form of currency on them until they reach the senior end of the program. Ms Burnnard also informed me that you were not allowed a mobile phone until you entered the leaver’s stage.
25Also tendered on your behalf was a letter dated 22 June 2021 from George Kiridis, Clinical Team Leader, at Odyssey House. He writes that since you moved into the leaver stage of the program on 7 May 2021, you commenced mediation sessions with your former partner, and you are having weekly unsupervised visits and regular communication with your three children. You have weekly family counselling sessions with Berry Street Victoria, and you have recently completed the 'Exploring Children's Behaviour' course, designed to focus on and develop strategies to support children's behaviours. Mr Kiridis confirms you are in employment with your uncle, and you are also in the process of obtaining your heavy rigid truck licence. Importantly, Mr Kiridis states that in the leaver’s program you have been trustworthy and reliable at all times and worked consistently within the boundaries and rules of that program. You remain focused and committed to your recovery and connection with your peers.
26You are able to stay at Odyssey House for as long as you need, but it is your hope, once you are sentenced, to move out and gain further independence. You will continue, if required, to receive out-patient support.
27You commenced working on 7 July 2021 with your uncle, Frank Sacco. You work on average five to six days per week. A letter from your uncle was tendered on your behalf. It is undated but was written before you started work. Your uncle confirmed the availability of work and that in the past, when he employed you, he found you to be a reliable worker.
28As at the plea hearing on 19 July 2021, you had been a resident at Odyssey House for a period of 526 days. You have remained abstinent from drug use, which is confirmed by the random drug screening results obtained by Odyssey House, tendered on your behalf, covering the period 17 February 2020 to 4 April 2021. I was also provided with drug screening results from Port Phillip Prison for the period November 2019 to 6 January 2020, which also confirmed your drug free status.
29Ms Burnnard submitted that your time at Odyssey House, whilst significant for your rehabilitation prospects, has also had a substantial punitive effect upon you. I have already set out some of the restrictions placed upon you in the Odyssey House program. Relying on the decision in Akoka v The Queen,[1] Ms Burnnard submitted that the punitive and restrictive nature of your time at Odyssey House is relevant to the sentencing discretion. On the evidence before me, I agree. Your residency at Odyssey House, as a condition of your bail, has not only assisted with your rehabilitation but its restrictive therapeutic regime has effectively operated as punishment for which credit, in the form of sentence reduction, is to be given.
[1][2017] VSCA 214
30You are also entitled to have taken into account the 113 days you have spent in custody as pre-sentence detention.
31Also tendered on your behalf are two references from your mother, Debra Sacco. Her first reference, dated April 2021, refers to the positive changes she has seen since you were admitted to the Odyssey House program. She notes your wish to make amends for your offending. Her second reference dated, 30 June 2021, confirms you are continuing to make good progress, and you are now spending time with your three children. Your mother states that she and your three sisters are supportive of you in your efforts to rehabilitate.
32Your children are now aged 14, 11 and 18 months. Your relationship with their mother ended in June 2020. Your eldest child lives with your mother and the two youngest with their mother. You are working on increasing your access with the two youngest children. Ms Burnnard told me that a parenting plan has been prepared, and since 29 May of this year, you see your two youngest children each Wednesday when you pick them up from school and childcare, and each Saturday.
33You are 34 years of age. Your father suffered from drug and alcohol abuse problems. He and your mother separated some 15 years ago. He was physically and verbally abusive to all members of your family. You have little contact with him but have a close relationship with your mother and sisters.
34You did not pass Year 10 and struggled with reading and writing. On leaving school, you have held a number of jobs mainly in concreting and construction. As earlier mentioned, you are now working on a full-time basis with your uncle in the concreting industry.
35A psychological report from Mr Bernard Healey, dated 2 November 2019, was tendered on your behalf. Although it is now somewhat dated, it nevertheless provided some useful background information. Mr Healey sets out your sad history of drug abuse, noting you commenced smoking ice from the age of 17. You attempted suicide through drug overdose on two occasions. The last, in August 2016, involved you drinking 30 mils of GHB, hoping you would not wake the following day.
36You have, in the past, attempted to quit drug use for the sake of your former partner and your children. Those previous efforts proved unsuccessful. However, you expressed to Mr Healey a very strong resolve not to return to drug abuse. So far, as earlier mentioned, your efforts have been successful.
37Ms Burnnard also relied on your pleas of guilty not only as indicators of your remorse, but also for the utilitarian benefits they provide, particularly at this time of the COVID pandemic and its impact on court lists. You have spared the court and community the time and cost of a trial. You have also spared witnesses the need to give evidence at both a committal hearing and at trial. Your pleas of guilty entitle you to a significant reduction in sentence. I accept also that you are remorseful for your offending conduct.
38A pre-sentence report dated 24 May 2021 was provided from Community Corrections officer, Monika Dankoff. You were assessed for your suitability for a Community Correction Order. Ms Dankoff noted your previous opportunities at corrections orders, a number of which you breached. You frankly acknowledged previous breaches resulted from your relapse into substance abuse. She noted your recent progress at Odyssey House and your commitment maintaining abstinence. You also showed insight and remorse for your offending. Despite your previous breaches, you have been assessed as suitable for a Community Correction Order.
39I will make brief reference to your criminal record, which you admit. Your early offences mostly related to driving matters. They are relevant as they show a disregard by you of court orders, including licence cancellation orders. You have been placed on intensive correction orders, suspended sentences and community correction orders. You have been in breach of those. Your first convictions that are drug-related were in April 2015, when you were convicted for possessing a drug of dependence and cultivating a narcotic plant. You were placed on a community correction order for 12 months with conditions. You breached that order. Your next drug offence was in November 2019 when you were convicted of cultivating a narcotic plant. You do not have any prior convictions for trafficking in a drug of dependence. You have other serious criminal convictions, including for dishonesty offences and committing indictable offences whilst on bail. I was informed that you have no subsequent convictions nor any matters outstanding. I think it is fair to say, Mr Sacco, that should you not make the most of the opportunity this court is now giving you, you can expect to be resentenced to a term of imprisonment and spend increasing periods of your life in gaol.
40In sentencing you I have also had regard to principles of general and specific deterrence, denunciation, just punishment and totality. Each is important and had it not been for the pre‑sentence detention you have already served, your approximate 18 months at Odyssey House, and your impressive progress towards rehabilitation, I would not have contemplated a Community Correction Order but instead have fixed a head sentence and non-parole period. Your rehabilitation I consider needs to be fostered and, if successful, will not only be in the best interest of you and your family but also of the community.
41I have decided to impose an aggregate sentence of imprisonment and a Community Correction Order in respect to all charges. I consider that the offences before me to which you pleaded guilty are founded on the same facts or form or are part of a series of offences of the same or a similar character.
42Mr Sacco, you should understand that compliance with a Community Correction Order is not optional. You must comply with all the conditions of the order even if that interferes with your employment. Failure to do so may result in breach proceedings and my resentencing you on the original charges. Do you understand that Mr Sacco?
43OFFENDER: Yes, I do.
44HIS HONOUR: Good. I am not going to impose a condition that you perform unpaid community work as, given the time you have served, including your time at Odyssey House, and what is referred to as Renzella time, which your counsel will explain further to you if need be, as well as the fact that you are in full-time employment, I do not consider it necessary to impose a community work component. I will, however, impose conditions requiring supervision, that you attend all programs designed for treatment in respect to your drug issues, conditions that you attend programs designed to prevent you from reoffending, and I will also impose a judicial monitoring condition.
45Mr Sacco, please listen carefully as I read to you what will be the orders.
46On Charges 1, 2 and 3, and Summary Charges 10 and 11, you are convicted and sentenced to a term of imprisonment of 123 days and I also place you on a Community Correction Order for a period of 18 months commencing today.
47Now, the mandatory conditions of the order are as follows:
•You must attend at the South Morang Correctional Services within two clear working days after the commencement of this order.
•You must not commit another offence for which you could be imprisoned during the time that the order is in force.
•You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011, meaning you must not attend at any Community Corrections Centre, or other place you are sent, under the influence of drugs or alcohol.
•You must report to and receive visits from the Secretary or his or her delegate.
•You must let a community corrections officer know within two clear working days of you changing your address or job.
•You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate.
•You must obey all lawful instructions from and directions of the Secretary or his or her delegate.
48When I mention 'delegate', for your purposes anyone that supervises you at Community Corrections is a delegate. Do you understand that?
49OFFENDER: Yes.
50HIS HONOUR: In addition to those mandatory conditions I will also impose the following conditions.
•You must be under supervision of a Community Corrections officer for a period of 18 months.
•You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the Regional Manager.
•You must undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed by the Regional Manager.
•You must participate in programs and/or courses that address factors leading to the offending as directed by the Regional Manager.
•You must attend for review at this court on 10 December 2021 at 9.30 am. That is the judicial monitoring condition.
51Do you understand the terms of the order and the conditions?
52OFFENDER: Yes, I do.
53HIS HONOUR: All right. Do you consent to a Community Correction Order being made?
54OFFENDER: Yes.
55HIS HONOUR: All right. We now have a printed version. I will ask that your client sign it, Ms Burnnard.
56MS BURNNARD: Yes, Your Honour, I can take that down to him. Just before I do that, it might have been my hearing, but I heard Your Honour say 123 days plus a CCO. Is it Your Honour's intention that he serve 10 more days?
57HIS HONOUR: No. You're quite right, I did say that. It's 113 days. Thank you for that. And I'll declare pursuant to s18 of the Sentencing Act pre‑sentence detention in this matter is reckoned at 113 days as having been served in relation to the charges before the court.
58MS BURNNARD: May it please the court.
59HIS HONOUR: Thank you for that. You may approach your client, Ms Burnnard.
60Ms Dickens, are there any other orders that are sought?
61MS DICKENS: Yes, there are the matters of the forfeiture and disposal order, Your Honour. My instructor is having her own technology problems this morning, that being her email system, so what I would propose to do is just read the proposed orders out to the court and then copies of those will be forwarded as soon as she's able to send those through.
62HIS HONOUR: Yes.
63MS DICKENS: So with respect to the forfeiture order it is sought that the court order pursuant to s34(1) of the Confiscation Act 1997 that the following property be forfeited to the Minister, that being $2,450 in cash. And then with respect to the disposal order it is sought that the court order pursuant to s78(1) of the Confiscation Act the forfeiture to the State of the property referred to, the following property that I will refer to, and further direct that it be placed in the custody of the Chief Commissioner of Police, held until 28 days from this date or the conclusion of any appeal proceedings, where it may be tested and/or analysed and then destroyed.
64That property sought to be disposed of, Your Honour, is 19 Victorian driver's licences, seven Medicare cards, three working with children's check cards, one NAB Visa card, one health care card, one Swinburne University student card, one Caltex StarCard, two bottles containing liquid, a plunger containing liquid, one yellow drink bottle containing liquid, two snap-lock bags containing crystal rock substance, one mobile phone, one marijuana horticulture book, one food colouring bottle containing liquid, one 4 litre canola oil bottle containing liquid, one further bottle containing liquid, three cannabis plants and one bottle containing clear liquid substance.
65My instructor will forward those as soon as she possibly can, Your Honour. Thank you.
66HIS HONOUR: Thank you. Ms Burnnard?
67MS BURNNARD: No issue taken with that, Your Honour.
68HIS HONOUR: All right. I will make both the forfeiture and disposal orders that have been sought.
69MS DICKENS: As Your Honour pleases.
70HIS HONOUR: Mr Sacco, you may remain seated, thank you. I will be seeing you on 10 December for judicial monitoring. At that time I will receive a report from Community Corrections informing me as to how you have been progressing on the Order. You have had such orders in the past and you have breached them. However, you are going on to this order from a completely different position. You have under your belt now a significant period of rehabilitation. You have significant support in the community if you need it, both from Odyssey House, from your mother and your sisters.
71You are also working very hard to be reunited with all three children. You have done very well to date. I hope you keep it up and that when I see you for your judicial monitoring I receive a glowing report similar to the ones that have been provided to me through the various personnel at Odyssey House.
72All right, Ms Burnnard and Ms Dickens, thank you for your assistance in this matter.
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