Director of Public Prosecutions v Salvatore Grasso
[2017] VCC 657
•25 May 2017
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-00686
DIRECTOR OF PUBLIC PROSECUTIONS Prosecution
v
SALVATORE GRASSO Defendant
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JUDGE: His Honour Judge Murphy
WHERE HELD: Melbourne
DATE OF HEARING: 24 May 2017
DATE OF SENTENCE: 25 May 2017
CASE MAY BE CITED AS: DPP v Grasso
MEDIUM NEUTRAL CITATION: [2017] VCC 657
REASONS FOR SENTENCE
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Catchwords: Criminal law – Sentence – Possession of substance, material, documents or equipment for trafficking in a drug of dependence – Possession of a drug of dependence – Possession of precursor chemicals used in the production of methylamphetamine – Relevant summary offences – Relevant prior convictions – Offender previously sentenced for identical offences – Need for general and specific deterrence – Whether imprisonment with a non-parole period or combination sentence appropriate – Offender previously completed community corrections order – Combination sentence imposed
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APPEARANCES: Counsel Solicitors
For the Crown Mr D Porceddu Office of Public Prosecutions
For the Defendant Mr R Backwell Valos Black
HIS HONOUR:
Salvatore Grasso, you have pleaded guilty to one charge of possession of a substance, material, documents or equipment for trafficking in a drug of dependence.[1] The maximum penalty is ten years' imprisonment.
[1] Contrary to Drugs, Poisons and Controlled Substances Act 1981 (Vic), s. 71A.
You have also pleaded guilty to one charge of possession of a drug of dependence (methylamphetamine). The maximum penalty for this, if I am satisfied on the balance of probabilities that the drug was not for trafficking purposes, is one year imprisonment or 30 penalty units or both. If I am not so satisfied, the maximum penalty is five years' imprisonment.[2]
[2] Pursuant to Drugs, Poisons and Controlled Substances Act 1981 (Vic) s. 73.
You have also pleaded guilty to two summary offences, namely possessing a prohibited weapon – maximum penalty two years' imprisonment – and committing an indictable offence whilst on bail, for which the maximum penalty is three months' imprisonment.
Circumstances of the offending
The circumstance of the offending was set out in the Crown opening which was read in open court yesterday, which I incorporate by reference.[3]
[3] Exhibit A on the plea.
In brief compass, on 15 October 2015, police executed a search warrant where you were living with your mother in Outlook Court, Chadstone. Here, police found various liquid and solid substances and array of containers, scientific glassware and equipment, and a number of solvents and chemicals. Specifically, police located three plastic containers, each of which contained hypophosphorous acid, which is a precursor chemical, in a total quantity of 1228 millilitres. This is in excess of 50 times the prescribed limit under the Drugs, Poisons and Controlled Substances Regulations 2007, where the prescribed quantity if 25 millilitres.[4]
[4] Drugs, Poisons and Controlled Substances Regulations 2007 (Vic), Schedule 1.
Further, police located a number of containers containing ephedrine and/or pseudoephedrine in the amount of 3475.8 grams, which was not in viable form. A cardboard box underneath your bed was found to contain a plastic bag and a glass jar, each with amounts of sodium hydrophosphite, which is a precursor chemical used in the production of methylamphetamine. The total amount of sodium hydrophosphite was 39.4 grams. This is 1.5 times the prescribed quantity under the Regulations.[5]
[5] Ibid.
Scientific glassware, equipment, solvents and chemicals suitable for use in the manufacture of methylamphetamine were also found in various locations throughout the house. Iodine, however, which is an ingredient of methylamphetamine, was not located. The precursor chemicals and the equipment located at the premises form the subject of Charge 1 on the indictment.
In addition to these chemicals and the equipment found, the police located 373 grams of a substance found in four items seized which, after analysis, was found to contain a total of 1.37 grams of methylamphetamine. This forms the basis of Charge 2 on the indictment, possession of methylamphetamine.
Located next to your bed was a sword. This constitutes the summary Charge 6. At the time of the offences on 15 October 2015, you were on bail for other offences. Therefore, the summary Charge 7 of committing an indictable offence on bail arises and that is an aggravating circumstance for all the offending.
10.You were arrested during the execution of the search warrant and interviewed by police, where you admitted that there was methylamphetamine, glassware and solvent located in your bedroom. You also admitted knowing that hypophosphorous acid is a precursor chemical used in the manufacture of methylamphetamine. You denied, however, that it was present in your house.
11.You were bailed on 2 November 2015 and the matter proceeded by way of a hand-up brief. You pleaded guilty on 24 January 2017, three weeks before the trial was to commence. You are entitled to credit for your plea, despite it being relatively proximate to the trial date. You have saved the need for a contested trial and associated costs and time, and you have accepted responsibility for your conduct.
12.In the report of the Office of Corrections, they indicate you have also expressed remorse. So, I find that there is a limited degree of remorse for your conduct.
Prior convictions
13.You have been presented twice in this court on drug charges. Relevantly, on 1 November 2011, you were sentenced by Judge Maidment to a suspended sentence of imprisonment on charges of trafficking various drug of dependence, including methylamphetamine.[6] On 30 August 2013, you were again sentenced in this Court by Judge Grant on a charge of possession of substances, materials or equipment with the intention to use these items to traffick in a drug of dependence, as well as a charge of possession of a drug of dependence, namely methylamphetamine.[7] These are identical charges to which I am sentencing you today.
[6] DPP v Grasso & Mawas [2011] VCC 1930 (Judge Maidment).
[7] DPP v Grasso [2013] VCC 1238.
14.Judge Grant sentenced you to 30 days' imprisonment declared as time served and ordered you to complete an 18-month community corrections order, which included 180 hours of community work. You also have prior convictions for possession of methylamphetamine and possessing a controlled and dangerous weapon without excuse. You have been given a number of suspended sentences for these offences.
15.You have a number of relevant convictions which go to the culpability of this offending for which I am sentencing you. When you committed this offence, you had only ten months earlier completed the community corrections order imposed by Judge Grant. Your counsel conceded, given your failure to respond, that specific deterrence as well as general deterrence are the most important sentencing considerations here.
Seriousness of the offending
16.Your counsel, by acknowledging the fact that this is serious offending of which you have prior convictions, including a direct prior conviction, stated that the purpose for which you came to possession of the substances and equipment was to ‘barter’ them for methylamphetamine.
17.The learned Crown prosecutor, on the other hand, submitted that this is serious offending which is aggravated by your relevant prior convictions. The learned Crown prosecutor submitted that your proposed plan to ‘barter’ the equipment and chemicals for methylamphetamine could not be accepted, as the charge to which you pleaded guilty specifically states that you held the equipment and chemicals at your premises and your intention was to use those substances to for the purpose of trafficking in a drug of dependence.
18.Given your previous conviction for the same offence and your addiction to methylamphetamine, I do not accept the statements in you record of interview that you intended to barter the equipment. There was enough chemicals in your bedroom to indicate that you were intending to make an effort to produce the completed product and then proceed to sell it. This raises your culpability to a higher level.
19.In relation to the actual methylamphetamine found, the amount is very low, although the volume of material which it was contained in is quite significant. Given the very low purity, I accept your counsel's submission that it was not for the purpose of trafficking, and thus I will deal with you on the basis of the lower penalty regime for that offence. I note, however, that given your prior conviction for possession of methylamphetamine, specific deterrence is an important consideration in sentencing you in this case.
Matters in mitigation
20.Your counsel, in an economical and focused plea, put a number of matters in mitigation that I take into account. Your counsel submitted that up until you were aged 48 (you are now 56), you lived a relatively normal life. You completed year 10, commenced work as a butcher and worked in both wholesale and retail. You have owned your own businesses at various stages in your life. You are married and have two daughters and they are both now adults.
21.Due to the breakdown of your marriage approximately eight years ago when you were aged 48, you began using illicit drugs and there is reference to being depressed in the sentencing remarks of Judge Grant and Judge Maidment. You started self-medicating on methylamphetamine. As a result of that breakdown, you did not have contact with either of your daughters for a five year period. Although you do have contact with your eldest daughter at the moment, she has got her own problems and is in the hands of the Office of Corrections.
22.The breakdown of your marriage triggered your drug use, which was followed by you suffering from depression. You still suffer from depression and self-medicate by using methylamphetamine. You have, however, told the Office of Corrections that you have not been using illicit drugs for a period of 12 months.
23.All these matters indicate that, in a sense, you are at somewhat of a fork in the road. You have had a number of prior appearances for use and possession of methylamphetamine, as well as the two matters that I have referred to in this Court. Your counsel conceded in submissions that you have got to serve a term of imprisonment. The issue is really whether you get a parole sentence or a combination sentence.
24.The learned Crown prosecutor, in a frank concession, indicated that a combination sentence was within range. Having considered the matter in detail, I have accepted his submission after having received a favourable report from the Office of Corrections.
Purposes of sentencing
25.The purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any. I am required to balance the interests of the community in denouncing criminal conduct, with the interest of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
26.In this case, as I have indicated, both general deterrence and specific deterrence are salient. General deterrence because methylamphetamine is a prevalent drug. All those involved in the drug trade, in whatever capacity, including manufacturing and possession of items that will allow manufacture, need to be given a signal that, if apprehended, serious punishment will be administered. Here, you have been involved by the possession of equipment and implements to manufacture methylamphetamine for purposes of drug trafficking and thus, you are part of the overall hierarchy. Your conduct must be totally condemned.
27.Specific deterrence is also relevant because you have a direct prior conviction for this offence. You received a merciful sentence from another judge of this Court. You successfully completed the community corrections order, but you have now relapsed into the same type of offending. Effectively, as put by your counsel, for the last three or four years, you have been under the supervision of the Office of Corrections by way of a suspended sentence and the community corrections orders, which you have breached by reoffending.
28.Counsel for the prosecution submitted, as I have indicated, a community corrections order combined with a sentence of imprisonment was within range. There is obviously a community interest in your rehabilitation from your lapse at a relatively late age into drug use. I am satisfied that the ends of sentencing by way of general deterrence, denunciation and specific deterrence, and your rehabilitation back into the community can be best achieved by a combination of a sentence of imprisonment, followed by a community corrections order. You have indicated that you consent to a community corrections order being imposed.
Sentence
29.The sentence of the Court is as follows.
30.On Charge 1 of possession of a substance, material, document or equipment for trafficking in a drug of dependence, you are convicted and sentenced to 12 months' imprisonment.
31.In addition to that, upon your release, you are sentenced to an 18-month community corrections order. The order commences upon the completion of the imprisonment and ends 18 months from that date.
32.On Charge 2, possessing methylamphetamine, you are convicted and sentenced to one month imprisonment.
33.On the summary Charge 6 of a possession of a prohibited weapon, you are sentenced to seven days' imprisonment.
34.On summary Charge 7, committing an indictable offence on bail, you are sentenced to one month imprisonment.
35.I direct that all the sentences of imprisonment are to be concurrent.
36.The terms of the community corrections order, which is to commence upon your release from prison, are that you have got to attend at the Dandenong Community Corrections Centre within two clear working days. You have got to do 100 hours of unpaid community work over a period of 18 months. You are to under supervision of the Office of Corrections for a period of 18 months. You are to undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager. You must undergo any mental assessment and treatment, which may include psychological, neuro-psychological, psychiatric or treatment in hospital or residential facility as directed by the manager.
37.I further declare a period of 19 days as time served by way of pre-sentence detention and order that it be noted in the Records of the Court.
38.Pursuant to section 6AAA of the Sentencing Act 1991, I declare that, had you not pleaded guilty, I would have sentenced you to a total effective sentence of two years imprisonment with a non-parole period of 15 months.
39.I make the forfeiture and disposal orders sought by the Crown.
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