Director of Public Prosecutions v Salanitri
[2021] VCC 605
•12 May 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01739
CR-21-00642
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAKE SALANITRI |
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| JUDGE: | HIS HONOUR JUDGE McINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 April 2021, 10 May 2021 |
| DATE OF SENTENCE: | 12 May 2021 |
| CASE MAY BE CITED AS: | DPP v Salanitri |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 605 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Traffick drug of dependence – Aggregate commercial quantity – drive in a manner dangerous cause serious injury – Texas Hold’em – Reward money – Substance abuse issues – No priors – Imprisonment – Non parole period
Cases Cited:R vLacey [2007] VSCA 196 - R v Hammond [1996] 2 Qd R 195 DPP v Dalgleish (2017) ALJR 91 - Gregory (a Pseudonym) v The Queen [2017] 268 A Crim R 1 - Fernando v The Queen [2017] VSCA 208 - Akoka v The Queen [2017] VSCA 214 - DPP vBourke [2020] VSC 130 - R v RHMcL (2003) CLR 452
Sentence:Global total effective sentence for both indictment numbers of five years imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms T. Bolton | Office of Public Prosecutions |
| For the Accused | Ms P. Marcou | Malkoun & Co Lawyers |
HIS HONOUR:
1In the matter of the pleas of Jake Salanitri before this Court, Ms Bolton appeared on behalf of the Director and Ms Marcou on behalf of Mr Salanitri, with Mr Travis Brown on two occasions, but not today.
2Mr Salanitri was born in October 1996. He is now 24. He was 22 at the time of the last offending. He is a pizza chef by occupation.
Charge 1 of Indictment L11716712.1
3Mr Salanitri pleaded guilty on 21 April 2021, firstly, to two charges in Indictment No.L11716712.1. The first of those was traffick an aggregate commercial quantity of a drug of dependence on 17 July 2020 at Docklands. The drugs involved were Ketamine, Methamphetamine, Cocaine and Methylenedioxy-N-Methylamphetamine (‘MDMA’). This is an offence against s.71AA of the Drugs, Poisons and Controlled Substances Act 1981, which prescribes a maximum penalty of 25 years imprisonment. It is also determined under the Sentencing Act to be a Category 2 offence which, pursuant to s.5(2H), warrants gaol unless there is a special reason put forward, which was not put in this case.
4This was the first time that I considered such a charge. The threshold for such offence is detailed in s.71C, and the calculation produced pursuant to that section resulted in the number 1.1 kilograms. Such is detailed in Addendum 3 the Statement to Ms Marianne Sleebs, to the Prosecution Opening (Exhibit A), in particular at paragraph 61 at paragraph 3(3) of such certificate, where the calculation is demonstrated. Such charge was amended as to the reference to one of the drugs and that amendment was endorsed in this Court.
5I was concerned as to whether, given the calculation and the factors involved in getting to the final number, the drugs, Cocaine and MDMA should be deleted from this charge. In the further plea, it was agreed that such amendment was not necessary and the defence accepted that this charge included those drugs, albeit those drugs not being used in the calculation. Both counsel accepted the calculation and the plea was conducted upon this basis as to such calculation and, as such, Addendum 3 was tendered as Exhibit D.
6On the basis of the totality of the fraction, as settled pursuant to Exhibit D, the agreement between the parties therefore was that it was, insofar as my sentencing, a weight just above the threshold for this charge.
7As to this charge, it is governed by s.5(2H) of the Sentencing Act and no submission had been put to the Court that imprisonment should not be imposed.
Charge 2 of Indictment L11716712.1
8Coming then to Charge 2 on the same indictment. This occurred on the same date and was a charge of dangerous driving causing serious injury pursuant to s.319(1A) of the Crimes Act 1958. The victim in this matter was Jessica Hicks. The maximum penalty prescribed for this offence is one of five years imprisonment or 600 penalty units.
9In addition, pursuant to s.89(1) of the Sentencing Act there is, required upon conviction, a minimum loss by way of cancellation of a car licence of 18 months.
Summary Charges of Indictment L11716712.1
10Ms Marcou also pleaded, on behalf of Mr Salanitri, guilty to the eight summary charges which also arose on 17 July 2020. Such are detailed at pp.10 and 17 of Exhibit A.
11The first is Charge 14: possession of a Schedule 4 poison, in this case being Slidenafil, an offence against s.36(2) of the Drugs, Poisons and Controlled Substances Act for which the maximum penalty is one of 10 penalty units.
12Charge 15: deal in proceeds of crime, this related to the $9,450 found in the car, being an offence against s.195 of the Crimes Act for which a maximum penalty of two years imprisonment applies.
13Charge 16; fail to stop upon police direction, a breach of s.64A of the Road Traffic Act , for which the maximum penalty is six penalty units and/or six months gaol for a first offence.
14Charge 19: a learner driver driving a car without supervision, a breach of Regulation 47(2) of the Road Safety (Drivers) Regulations 2019, for which the maximum penalty is one of 20 penalty units.
15Charge 20: drive without learner plates displayed, a breach of Regulation 48(1) of the Road Safety ( Regulations, for which the maximum penalty is three penalty units.
16Charge 21: commit an indictable offence whilst on bail. It is to be noted that following these events Mr Salanitri was bailed on 5 September 2019. The charge was, as a result of the last hearing, further amended to show that the indictable offence in this matter is Charge 1 on the indictment; being trafficking in an aggregate commercial quantity of a drug of dependence. Such is an offence under s.30D of the Bail Act, for which a maximum penalty of three months gaol and/or 30 penalty units applies.
17Charge 37: a charge under s.59(1) of the Road Traffic Act of enter an intersection against a red light, for which the maximum penalty is 10 penalty units.
18The final summary charge was Summary Charge 38, which was a charge of drive while in his blood was an excessive amount of a prescribed quantity of drugs. This is an offence pursuant to s.49(1)(bb) of the Road Safety Act. For a first offence the maximum penalty is 12 penalty units and six months loss of licence.
19Again, in the reconvened hearing I sought some advice in this matter. I was told by the Prosecutor that there is in fact no prescribed quantity, that any percentage or drug in the blood is sufficient for this charge to be proven and, as such, the plea was made.
Indictment No. K11890123
20That then takes us to the second indictment to which
Mr Salanitri pleaded guilty, and that is the eight charges in indictment No.K11890123.21The first body of charges are five charges of traffick simpliciter in a drug of dependence on 20 July 2019, being an offence against s.71AC(1) of the Drugs, Poisons and Controlled Substances Act, which brings with it a maximum penalty of 15 years imprisonment and/or 1,800 penalty units for each charge.
22By way of summary I point out the details of the drug and amounts in each charge, I as set out in paragraph 33 of Exhibit A:
(a) Charge 1, cocaine - 60 grams;
(b) Charge 4; amphetamine - 139 grams;
(c) Charge 5; Butanediol – 200 grams;
(d) Charge 6; Methamphetamine – 1223 grams; and
(e) Charge 7; Cannabis – 98 grams.
23In addition, Mr Salanitri pleaded guilty to two charges of possession of a drug of dependence on 20 July. Charge 2, being possession of the drug of dependence Ketamine, and Charge 3, being possession of the drug of dependence Diazepam.
24The final charge in that indictment is Charge 8. That is, again, a charge under s.71AA(1), which I have already indicated brings with it a maximum penalty of 25 years imprisonment and is a Category 2 offence to which s.5(2H) applies.
25In this instance the trafficking took place on 20 July 2019. The drug was MDMA. The threshold here is a figure of 500 grams mixed pursuant to Part 3 of Schedule 11. The agreed amount, which is set out in paragraph 36 of the opening, that is, the mixed amount to which the plea was made, is 1.128 kilograms. It was clarified at the further plea hearing, that despite that amount by way of mixed quantity being over the threshold for the more serious offence, that is, for a large commercial quantity, this charge was settled by agreement on the basis that Mr Salanitri would plead guilty to this charge (Charge 8) under s.71AA(1) and that the quantity involved could not be higher for that category.
26Exhibit A was tendered by the prosecutor and provided a summary in regard to each indictment. The facts as detailed in that exhibit, were accepted by Ms Marcou as the facts upon which I am to sentence her client. Her client comes before the Court with no priors. Mr Salanitri comes before the Court with pre-sentence detention of three hundred and forty-seven days.
Circumstances of the Offending
27The background to the criminality is that Mr Salanitri was a multi-substance drug user, and at the time of the first offending, by way of date was a Crown Rewards member. He was a person, on that date, being in July 2019, who had subjected himself to a cocktail of drugs and stimulants.
28On 12 July 2019 Mr Salanitri played a game of poker at the Crown Casino. Not only did he win his hand, but he won a jackpot, as a result of which he won $582,213. Thereafter he entered the Crown Towers as a guest, and booked himself in for a week. There, not only did he spend most of his money but, if I could use the term, he 'blew much of his mind'.
29By 20 July, with the combined actions of Crown staff, Crown security and police, Mr Salanitri was arrested. He was found with drugs on his person, in his backpack, in the Crown suite room safe, in his suitcase, and in a personal safe that he carried. He notably, when asked if he had purchased drugs after he had had his big win, said in the record of interview he certainly purchased 'a lot more after I won the jackpot'. When asked how much did he purchase he said 'as much as I can' and, further, when asked about his drug habit, said, 'I am a raging drug addict'.
30Despite the seriousness of these charges Mr Salanitri obtained bail on 5 September 2019. There were strict conditions on such bail, in particular, one of those conditions was that he was to admit himself into the DayHab Rehabilitation Centre as a 90 day inpatient, which he did. More than that, as I will remark later, he paid for that rehabilitation.
31Mr Salanitri was released from such rehabilitation approximately early December of that year. He was subsequently in the next year charged with the offences on the first indictment; that is, the offending which occurred on 17 July 2020.
32Charge 1, that is the further trafficking charge of a commercial quantity, arose after Mr Salanitri crashed his car in the circumstances encompassed in Charge 2.
33As to the driving (Charge 2), I have viewed the CCTV footage tendered. Clearly, on any viewing, the speed demonstrated, shows that Mr Salanitri was driving at an excessive speed, at a speed which was dangerous to all members of the public and particularly dangerous as he went through the red lights, as is obvious. He also unfortunately was driving while smoking an ice pipe. In particular one notes in the vision, or the images, at the intersection of La Trobe and Spencer Street he comes through on the wrong side of the road and, somewhat remarkably, misses a Yarra Tram, and what appears to be service truck, doing a right hand turn. I say 'remarkably' because despite the speed at which he was travelling he was still able to drive through on the wrong side of La Trobe Street, without coming into contact with the tram safety rails.
34Mr Salanitri then continued in such manner made the right turn from La Trobe Street into Harbour Esplanade and crashed into a large metal pole on the harbour side of such intersection. Given that Ms Hicks was present throughout this time, and ultimately seriously injured, it is no wonder that she says in her statement to the police that she thought she was going to die.
35Following this accident Mr Salanitri threw a bag immediately into the water, and a further bag into an adjoining rubbish bin. Mr Salanitri injured himself in the accident and was bleeding. I note that he had two days in hospital for what apparently was a broken rib. While Mr Salanitri was seeking to dispose of the items in the various bags, his victim was still stuck in the car and seriously injured. It is to be noted that Mr Salanitri initially, to the police, denied being the driver.
36Exhibit C is the medical report of Dr Schreiber. It was Addendum 2 to Exhibit A. It shows multiple bone fractures caused to Ms Hicks, indeed, eight fractures comprising a complex fracture to the wrist and hand bones, all of which required surgery, a fracture to the left lower leg requiring surgery and neck bruising. Such injuries left her in hospital for a period of four days and she was discharged on 21 July. Since that time she indicates she has had repeated ongoing pain, trauma, and apparently there is a risk of further surgery in regard to the left ankle.
37There was no victim impact statement filed, however, without objection, Exhibit E was tendered, which was the statement made by Ms Hicks on 11 September 2020. It illuminates the driving of Mr Salanitri on this night. If I read from paragraph 6, insofar as his driving was concerned Ms Hicks says this:
'I've no idea what direction or road we're on. I just remember he was flying and going onto the wrong side of the road. I was screaming hysterically and telling him to stop, as I was terrified. I glanced at the speedometer of the car and at one stage he was going at about 180 Ks'.
38I think, looking at the CCTV, that cannot be right, because that is over 100 miles an hour. Although Mr Salanitri was certainly speeding excessively, I do not think that can be correct.
39Ms Hicks goes on, at paragraph 8, to say as follows, which is a reference to the intersection of La Trobe and Spencer Street:
'He went through at least two traffic lights. He almost hit a tram then, further down the road, he almost hit a truck. It was almost a head on collision and, again, he was on the wrong side of the road when he almost hit the truck. I reckon he was going at least 150 K and he was also on the wrong side of the road. I honestly thought I was going to die'.
40At paragraph 10 she notes that after the accident, in circumstances where she was injured and could not get out of the car, he offered her $50,000 to tell the police that he was in fact not the driver.
41Insofar as the impact upon her, at paragraph 16, she states that this injury has impacted upon her physically, that, mentally, she has, and still suffers from the trauma of thinking that she was going to die that night, leaving her young son motherless, and that she continues to be traumatised.
42As I said, Mr Salanitri, because of his injuries, was taken to hospital that night. A blood sample was taken and confirmation of methamphetamine in his blood was made.
43The bags that he had disposed of, which I have referred to, were recovered, and the contents are detailed at paragraph 61 of the opening. As I say as to Charge 1, Addendum 3 has been tendered.
44Subsequent to Mr Salanitri being arrested on 10 August 2020 his iPhone was forensically examined. There were numerous calls which indicate both the selling and purchasing of drugs, but I accept the comments of Ms Marcou that there is nothing specific which will allow this Court to understand precise details as to the trafficking charge, being Charge 1.
45The learned prosecutor, submitted that the dangerous driving was a very serious example of this charge. She also noted the requirement pursuant to the serious drug provisions for cumulation. That is, as a result of the will expressed by the Parliament for the sentencing between Charge 1, in regard to the 2020 offending, and Charge 8 in the 2019 offending. There was no submission, however, put by the prosecution, and albeit on the second sentence for this charge that the prime purpose to be undertaken by this Court is the protection of the community, that a longer sentence than appropriate to the actual circumstances of the case was necessary.
46As I said, when a conviction for one of these charges is recorded pursuant to s.6B of the Sentencing Act Mr Salanitri is then subsequently sentenced as a serious drug offender, such details being required to be recorded in the records of this Court pursuant to s.6F, and, the sentence in that regard pursuant to s.6E is required by the Parliament to be cumulative.
Plea of Mr Salanitri
47Ms Marcou tendered Exhibit 1, being the written submissions on behalf of
Mr Salanitri, and spoke to them. Such submission relied in particular on the documents tendered from Exhibit 2 through to Exhibit 9.48Given the failure of the residential rehabilitation in 2019, and I say that only in the sense that there is further offending committed in 2020, albeit the client graduating letter (Exhibit 5 dated 23 August 17), which I do not think can be the right date, given the bail conditions. Ms Marcou relied on the comments made in Exhibit 4 and, in particular, the statements made by Bridgett Kirchner from the DayHab in Exhibit 4, dated 04/12/19, which was of course, at that time, subsequent to him being bailed and prior to the subsequent offending in 2020.
49The hopes, insofar as Mr Salanitri was concerned, expressed in that letter as to him effecting ongoing non-use of drugs were unfortunately unfulfilled. Mr Salanitri was then bailed in 5 September 2019 and ultimately came out of the residential rehabilitation on 4 December 2019. Insofar as that was concerned Exhibit 5 was tendered, which was a hopeful congratulations, as it is called, on him completing the addiction treatment program. And, significantly, in the second paragraph, noting that 'in our experience people often find it very difficult and confronting to leave rehabilitation and face life on life's terms'.
50The only positive insofar as the exhibits tendered are the four negative screens recorded in Ravenhall by Mr Salanitri from November 2020 through to January 2021. I also take into account, of course, Exhibit 9; being the certificates obtained while in Ravenhall as to civil construction and plant operations.
51In the plea Ms Marcou talks of the life changing event of the Texas Hold'em jackpot, which Mr Salanitri won on 12 July 2019. At that time he was 22. He had no priors, albeit with what turns out to be a long history of substance abuse.
52Mr Salanitri’s mother has been ill since he was aged 19. His father is a landscaper, who has been the mainstay of the family and impressed me in his evidence before me.
53Unfortunately, as is often the case, Mr Salanitri’s father had no idea, remarkably, of his son's raging drug habit, which apparently has been evident from the age of 16. I accept that no doubt life has not been easy for his father, coping with the duties of maintaining a family, looking after his ill wife and, in particular, after he lost his job due to COVID-19.
54Despite all that, however, as I said, his son still had no prior offences. Indeed, Mr Mr Salanitri senior's evidence, was that after Mr Salanitris’ release from residential care he was continuing Narcotics Anonymous and on, as I understand it, a two to three times a week basis. His father was driving him there. That he was, and seemed to be behaving, and indeed that was the position up to shortly before the date of the offending in July 2020. However, as his son described himself in the record of interview on 20 July 2019, he was, and unfortunately continued to be, 'a raging drug addict'.
55Ms Marcou submitted to me that this affliction should mitigate punishment and referred me to R vLacey [2007] VSCA 196, [16], and the references to R v Hammond [1996] 2 Qd R 195, [199] to [200]. While I take such into account and consideration I also, at the time, referred Ms Marcou to the determination of the Court of Appeal in Victoria in R v Koumis [2008] VSCA 84, [50]. That case notes, which I indeed take into account, the need for differentiation in regard to offenders where the offending is solely to feed a habit, as against where the motivation is pure greed. As I say, not quite certain of all the circumstances in this charge, as I will say later, but that differentiation obviously is of importance.
56It must not, however, be forgotten what the Court of Appeal said at paragraph 53 of that case, and was at pains to stress in regard to trafficking charges, especially as serious as the two commercial quantity trafficking charges that I am dealing with, that addiction provides no justification for such criminality. As the Court said a sentence for such offences must reflect the seriousness of the crime, where denunciation and general deterrence are recognised, and as the Court said:
'Generally speaking, addiction and any consequential impairment of judgment will not have any significant mitigatory effect upon those sentencing considerations'.
57It is to be remarked that the two trafficking in commercial quantity charges in this case each warrant a maximum penalty prescribed by Parliament of 25 years, albeit it is recognised that Charge 1 on Indictment L11716712.1 is at the lowest level of the qualifying threshold.
58Generally, in regard to sentence of trafficking matters, the High Court decision of DPP v Dalgleish (2017) ALJR 91 has not dissolved the need for an uplift, as detailed by the Court of Appeal in Gregory (a Pseudonym) v The Queen [2017] 268 A Crim R 1, and also Fernando v The Queen [2017] VSCA 208, albeit that such uplifted sentencing practice is, as the Court said, not a 'controlling factor', it cannot be ignored. See the reference also to that concept at paragraph 20 of DPP v Condo [2019] VSCA 181.
59Trafficking in methamphetamine is a prevalent offence, which means that the weight to be afforded general deterrence should be increased, such offence harming the community generally for the criminal's own profit, but I refer in this case to the earlier discrimination that I mentioned. That quotation is taken from paragraph 22 of Condo.
60As said by the Court of Appeal in Gregory and Fernando, any attention to individualised sentencing which is required by Dalgleish, and the comments of the High Court, must necessarily have in sharp focus the maximum penalty. Secondly, the respondent's role in the drug enterprise. Thirdly, the quantity of the drug actually transacted, and fourthly, the period over which such offending occurred (see Condo, [50]).
61Both of these offences are inherently serious given the maximum penalty prescribed. In the case of Nguyen v The Queen [2010] VSCA 127 the Court said the following, firstly, at [18]: 'As has been regularly pointed out in sentencing decisions, this is an offence for which Parliament has set the highest fixed maximum in the criminal calendar; 25 years' imprisonment', and it noted what Buchanan JA had said in the case of DPP v Duong [2006] VSCA 78 that 'the maximum of 25 years shows unambiguously how seriously the community, through the Parliament, views this conduct'.
62The Court went on, at [19], to say this:
And it is of course irrelevant which drug is being cultivated. So much was made clear by the decision of this Court in Pidoto. Since that 2006 decision the sentencing regime has remained unchanged. There has been no move to establish a scheme under which the sentencing court is expected to decide whether one drug is more harmful than another. As the Court said in Pidoto, this is a quantity-based sentencing regime. Although quantity will not bear an arithmetical relationship to sentence, the quantity involved is a very significant matter in sentencing for these offences.
63At paragraph 20 they went on to say:
‘This Court has referred regularly in the last 12 months to the obligation of sentencing judges to have regard to the maximum sentence fixed by Parliament. As the Court said in DPP v CPD:
“The discretion which a sentencing judge has in dealing with a particular offender is a vital part of the administration of criminal justice. But sentencing judges may not disregard the will of Parliament as expressed in the fixing of the maximum penalty.”’
64In addition, of course Mr Salanitri has also pleaded to five charges of traffick simpliciter on 20 July 2019 and also two charges of possession of a drug of dependence. Given the seriousness of those charges, it is hard to understand how Mr Salanitri did not take the opportunity given to him by his bail and the services offered to him by the DayHab organisation. However, experience shows that it is not easy to rid oneself of a 'raging habit'.
65As to Mr Salanitri’s rehabilitation, despite the impressive support of his father, one must be guarded as to his likely rehabilitation despite the positive steps he has taken in gaol, which I have noted today. The challenge to Mr Salanitri, as it has been since he was 16, is to see how he goes in the community, once he is ultimately released. I accept the points made in the plea that Mr Salanitri voluntarily admitted himself to DayHab and, indeed, as I understand from his winnings, paid the admission fee for the costs of such admission of $33,000.
66Mr Salanitri’s father notes as to his reoffending the impact of the change of the landscape in particular caused by COVID-19, the father’s own loss of employment as a result thereof, and the lack of post residential support brought about by the COVID-19 situation. Not only did his father lose his job in the COVID-19 circumstances but he still had issues caring for Mr Salanitri’s mother at home.
67Mr Salanitri’s father said in evidence that his son has now expressed his shame at being involved in such serious criminality and that his son now realises that in his life drugs must not be a part. Indeed, his father's expressed his hope, that he is looking forward to his son being released and then working in a family waterproofing business. Mr Salanitri senior expressed to the Court that he is keen to offer ongoing support, as will the whole family. I was particularly impressed with the evidence of Mr Salanitri’s father.
68Ms Marcou raised the issue of the 90 days that Mr Salanitri has spent in residential rehabilitation and I accept, pursuant to the principles set out in Akoka v The Queen [2017] VSCA 214, that given such stringent conditions those matters must be taken into account, and I do so in the sentence I pronounce, that is, the 90 days spent therein as a restricted resident. Ms Marcou also put that since July 2020 Mr Salanitri has been subject to remand, while being subject to the restrictions of the COVID-19 regime in prison. I accept the restrictions therein, as have been regularly demonstrated to this Court being not only the risk of catching COVID-19 although fortuitously for us all that has never occurred, but the restrictions on visiting and in being able to participate in services and get assistance.
69I also take into account, in considering the pleas of guilty, the effect that such pandemic has had on this Court and its rostering and the matters set out by a single judge of the Supreme Court in the case of DPP vBourke [2020] VSC 130, [32].
70Ms Marcou also raised the issue of the early plea; that it was utilitarian, that it assists justice and indicates an acceptance by Mr Salanitri of his responsibility for these crimes, and demonstrates remorse. I also note that as put by Ms Marcou that it was certainly his wish that both of these indictments came before the Court, to be heard together by way of a joint plea, to use Ms Marcou’s words, that 'Mr Salanitri wanted to wrap everything up in one'.
71I note Ms Marcou’s submission to the Court as to totality, the reference to the principles set out in Azzopardi v The [2011] VSCA 372, [61], s.5 of the Sentencing Act as to parsimony and the general principles that relate to rehabilitation, especially when one is dealing with a relatively young man.
72On the question of totality, this Court cannot disregard the seriousness of the count of dangerous driving causing serious injury in this case. I accept there could indeed be more serious injuries than were suffered by Ms Hicks. Can I say for both Ms Hicks and Mr Salanitri he is very lucky that, and she of course is lucky, that he is not before this Court on a culpable driving charge.
73However, looking at the actual charge, and the maximum penalty involved, I have no doubt that the culpability in regard to this charge could not be more serious. I say this because of the following factors:
(a) the lead up driving, which was outrageous, and, as Ms Hicks said, nearly killed him and her, in particular in the very close head on that could have taken place with the tramway service vehicle;
(b) the excessive speed. I make it clear that I do not accept the estimates made by Ms Hicks, however the CCTV shows clearly a gross excessive speed throughout the displayed progress of Mr Salanitri down La Trobe Street;
(c) such driving was undertaken while still partaking of ice, and he had ice in his system, as subsequently was proved;
(d) the obvious observation of him in fact driving through red lights as he proceeded; and,
(e) on the wrong side of the road; and
(f) his driving was in a manner and clearly at a speed at which he could not negotiate the turn as he got to Harbourside, which subsequently caused the crash and the serious injury to his passenger.
74I accept, taking all those factors into account, Ms Marcou's submission that the question of totality, given the varying competing circumstances that I have just recounted, is a very demanding one; especially as one is dealing with a young man with no priors.
75Despite my doubts or guarded view in regard to Mr Salanitri’s future rehabilitation, I consider that I should still encourage rehabilitation in my sentence given his young age, albeit in regard to the first offending, and in particular Charge 8 of the 2019 offending; s.6E applies insofar as the Parliament requires cumulation. In this regard of course this Court is bound by the serious drug provisions of the Sentencing Act. On the issue as to cumulation one accepts the tension in sentencing between carrying out the will of Parliament and the principle of totality, as referred to by the High Court in the case of R v RHMcL (2003) CLR 452, [476] to [477].
76It was that consideration, and that balancing of alternate factors, that led me to reconvene this Court on Monday 10 May to hear further submissions specifically on the matters that I had raised in my email to counsel of 6 May this year. I was particularly concerned as to how I classified the drug trafficking offences in both indictments and, as to the 2019 offending, how I related the simpliciter offending to the charge of trafficking a commercial quantity.
77In answer to those queries, essentially the prosecution put that there was no evidence as to such requested discrimination, but for the difference in volume. In the 2019 offences the simpliciter offences are drawn simply as to the weight found, as I have detailed earlier, and are simply discriminated from Charge 8 on such basis, albeit, as the prosecutor said, that Charge 8 comprises the highest possible weight there can be in such a charge.
78As to the 2020 offences (Charge 1), albeit trafficking in an aggregate commercial quantity, it is equally, difficult to ascertain clearly the facts as to trafficking. It is a charge which seems to have had its own history in offences such as this, of one day only. Apart from being in possession of an amount of drugs for trafficking, there is no evidence of any such dealing. Given the difficulties in both indictments that I was encountering, the prosecutor submitted that one needs to focus on the charge and the plea, which is to a charge of possession of such amounts for the purpose of trafficking, and to focus on the sentence which Parliament has prescribed, being that such is a quantity based sentencing regime, and I refer to my earlier comments in that regard.
79As was discussed, and the cases show, quantity is not the only factor, as is demonstrated from the multiplicity of factors put to me in the plea by Ms Marcou.
80As to the indictment concerning the offending in 2019 I think it proper, as submitted by Ms Marcou, to discount the offending for the particular circumstances which emanated out of the winning of the jackpot and its ensuing effect upon Mr Salanitri; a person who was already substance addicted. Against that is the high volume set out in Charge 8. Also, despite being given bail and attending residential treatment, six months later, after such residential treatment, Mr Salanitri committed a further s.71AA offence, at a level which equalled the threshold. I also find, given the case as presented by the prosecution, that the plea to both charges of trafficking in a commercial quantity should be seen by the Court as a very valuable pleas.
Sentence
81I come then, having taken into account all the matters that I have detailed, to sentence Mr Salanitri. Mr Salanitri, given where you are and the particular circumstances that we are still operating under, you need remain seated.
82In regard to an explanation of my sentence to you I have got no doubt that
Ms Marcou will take the opportunity for us to all be placed in the lobby at the end of these proceedings and to explain to you what probably will not be that clear, given the number of sentences I have to pronounce. We will make arrangements for that to take place.
Sentence of Indictment No. L11716712.1 (CR-21-00642)
83I will deal, firstly, with Indictment No.L11716712.1; that is, the offending which occurred in 2020.
84On Charge 1 of trafficking in an aggregate commercial quantity of a drug of dependence I sentence Mr Salanitri to three years gaol.
85On Charge 2 of dangerous driving causing serious injury I sentence Mr Salanitri to two and a half years gaol.
86I order that one year of the sentence in regard to Charge 2 be served cumulatively upon the sentence pronounced in regard to Charge 1, making a total effective sentence in this indictment of four years.
87Insofar as the summary offences to which I have already referred, that is, those summary offences which also took place on 17 July 2020, I pronounce the following sentences; and it should be remembered that the penalty unit applicable for such offences as of this date was the figure of $165.22.
88The sentences pronounced for the summary matters:
(a) Charge 14 will be three penalty units;
(b) Charge 15, three months gaol;
(c) Charge 16, three penalty units;
(d) Charge 19, three penalty units;
(e) Charge 20, one penalty unit;
(f) Charge 21, one month gaol;
(g) Charge 37, four penalty units; and
(h) Charge 38, six penalty units and the cancellation and suspension from obtaining a car licence for a minimum period of six months from today's date.
89It will be obvious that the total effective sentence of four years which I have pronounced in regard to the indictment will not, in any way, be affected by those summary sentences, which all be served concurrently, and that, as best I can understand it, the maximum penalty units imposed is 20, as I have said, multiplied by $165.22.
Sentence of Indictment No. K11890123 (CR-20-01739)
90Coming then to the sentence in regard to the offences in Indictment K11890123; that is, the offences which occurred in July 2019. Insofar as the trafficking simpliciter matters, that is trafficking of a drug of dependence, as I have detailed; being Charges 1, 4, 5, 6 and 7, on each of those charges Mr Salanitri will be convicted and sentenced to imprisonment of six months, given the particular circumstances of that trafficking as detailed to me by the prosecution, or the lack of circumstances, I might say.
91In regard to the two possession charges, Charges 2 and 3, Mr Salanitri will be sentenced on each charge to imprisonment of three months.
92Coming then to Charge 8, and taking into account the particular provisions that relate to Charge 8 by way of the serious drug provisions, I have determined that the trafficking in a commercial quantity of methamphetamine, that is, being Charge 8, should warrant a sentence of two and a half years.
93The total effective sentence therefore imposed in regard to Indictment K11890123 is two and a half years imprisonment.
94Insofar as the summary charge of possess controlled weapon, which was a knife, I sentence Mr Salanitri to two months imprisonment.
95The total effective sentence therefore on Indictment K11890123 is not affected by the summary sentence, which will be served concurrently.
96Insofar as the two indictments are concerned, and the total effective sentences on each indictment, I order that one year of the sentence of two and a half years in Indictment No.K11890123 be served cumulatively upon the total effective sentence of four years imposed in regard to the offences in Indictment L11716712.1, hence the total effective sentence imposed by me upon Mr Salanitri for both indictments will be five years.
97I order that the minimum period of imprisonment to be served by Mr Salanitri before being eligible for parole is two and a half years imprisonment. I further order, pursuant to s.18 of the Sentencing Act, that the 347 days that he has served to date by way of pre-sentence detention be deemed service of this sentence and that such declaration be recorded in the records of this Court.
98I have already indicated that I have taken that into account the 90 days in residential rehabilitation as required by Akoka. That therefore, as I have said, means that Mr Salanitri will have approximately another one and a half years to serve.
99I have made, by consent, two disposal orders and one forfeiture order. I am required to indicate, on the basis of the plea of guilty being made Mr Salanitri in this case to both indictments, what would have been the sentence that I would have imposed had he not pleaded guilty. I am afraid that the will of Parliament is almost impossible in this case, given the multitude of factors that I have had to take into account, and I do not intend to give an indication, I simply cannot on the basis purely of him pleading guilty given the many factors in this case of relevance.
100Pursuant to s.6E of the Sentencing Act, on Charge 8 of Indictment K11890123 he is sentenced as a serious drug offender, and that fact will be recorded in the records of this Court.
101Pursuant to s.89(1), given the sentence in regard to Charge 2 in Indictment L11716712.1 – that is, the charge of dangerous driving causing serious injury – pursuant to s.89(1) of the Sentencing Act his licence is cancelled and he is ordered not to obtain a licence for a period of 18 months. It is to be noted that such order dates from today and, not that I have to make an order, but naturally the earlier order as to six months will be served concurrently, so the maximum figure will be 18 months. Yes. Do either counsel wish me to clarify any of those matters?
102COUNSEL: No, Your Honour.
103HIS HONOUR: Yes. Well, I thank both counsel for their assistance at the various hearings we've had and for the clarification that's been given to the Court - which has been necessary, as I've indicated. Mr Salanitri, I don't expect you to be in anymore trouble, all right?
104OFFENDER: Yes, Your Honour.
105HIS HONOUR: Once you get out of gaol, you and drugs don't mix. You've got to do what your father said; get into that business and don't get into any more trouble. All right?
106OFFENDER: Yes, Your Honour. Thank you.
107HIS HONOUR: As I said, as best I can do in this sentence means approximately you've got another year and a half to go, and it's very important, given your relatively young age when you get out, to ensure no further trouble with drugs. Good luck.
108OFFENDER: Thank you, Your Honour.
109HIS HONOUR: Yes. Well, I'll excuse myself and allow you, Ms Marcou, to explain what I've just done to your client.
110MS MARCOU: I'm indebted, Your Honour. Indebted.
111HIS HONOUR: Yes. Thank you both for your assistance.
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