Director of Public Prosecutions v Sciascia

[2021] VCC 850

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01705

DIRECTOR OF PUBLIC PROSECUTIONS

v

PREMIER SCIASCIA

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2021
DATE OF SENTENCE:	24 June 2021
CASE MAY BE CITED AS:	DPP v Sciascia
MEDIUM NEUTRAL CITATION:	[2021] VCC 850

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Trafficking in a commercial quantity of a drug of dependence – Methylenedioxy-methylamphetamine (MDMA) - Possession of equipment for trafficking in a drug of dependence – Good prospects for rehabilitation

Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic)

Cases Cited: N/A

Sentence: Total effective sentence – Imprisonment of 3 years and 6 months with a non-parole period of 2 years – s.6AAA declaration – Imprisonment of 4 years and 3 months with a non-parole period of 2 years and 9 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Hamnett	The Office of Public Prosecutions
For the Accused	Mr P. Tomlinson	Haines & Polites Lawyers

HIS HONOUR:

1Premier Sciascia, you have pleaded guilty to -

(i) trafficking in a commercial quantity of a drug of dependence contrary to s71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 ('the Act'). The maximum penalty for that offence is 25 years imprisonment or a fine of 3000 penalty units or both; and

(ii) possession of equipment for trafficking in a drug of dependence contrary to s71A(1) of the Act. The maximum penalty for that offence is 10 years imprisonment.

2You pleaded guilty at committal mention and I have taken your early plea into account in your favour in mitigation of sentence.  Furthermore, your plea has facilitated the administration of justice during a period of restrictions imposed on the conduct of jury trials, and the ensuing court delays.

3I also accept that it is evidence of remorse for your offending. 

4You have admitted a limited criminal history and have recently completed a community correction order prior to your offending on this occasion.  That criminal history is of limited significance for sentencing purposes in this instance.

5A prosecution opening was tendered in evidence and your offending may be summarised as follows -

6On 4 September 2020 at 3.44 pm a vehicle in which you were the passenger was intercepted by police in Mortlake.  The vehicle was being driven by a friend of yours, Dana Smith.  You told police you had been to Geelong where you had been shopping.

7Police conducted a search of the vehicle and located two bags containing MDMA in powder form. The total weight of the powder was 167.2 grams and upon analysis was revealed to contain 119 grams of pure MDMA. A commercial quantity of that substance for the purposes of the Act is 100 grams.

8Following this a warrant was executed at premises occupied by you in Mortlake and police there located the following items -

(i) three sets of logic MDMA purity test kits;

(ii) empty white capsules in a zip lock bag;

(iii) empty blue lids for the capsules in a zip lock bag;

(iv) zip lock bag containing what was believed to be methylamphetamine;

(v) five large zip lock bags;

(vi) set of scales; and

(vii) an Australia Post box containing bag of white caps and a small plastic pill press.

9An examination of your mobile phone also revealed a number of text messages said to relate to a previous attempt by you to obtain MDMA for the purposes of sale.

10In an interview with investigators you confirmed that the MDMA in the vehicle was yours, but otherwise declined to answer the questions that were put to you.  Smith was also arrested and charged and faces contested committal proceedings on 31 August 2021.  You were charged with the offences now before the court and remanded in custody where you now remain. 

11The principles applicable to sentencing in this instance are well established, and it is the fundamental responsibility of the court to protect the community from the enormous harm caused by the distribution and use of illegal drugs of dependence.

12This sentence must be calculated to deter others from offending in this manner by making it clear that conviction for commercial trafficking of drugs of dependence will be met with the imposition of a significant term of imprisonment.

13Trafficking in a commercial quantity of a drug of dependence is a category 2 offence for the purposes of the Sentencing Act 1991, and subject to the exceptions provided for in s5(2H), paragraphs (a) to (e) of that Act I am, in any event, required to impose a custodial order upon you. The exceptions provided for are not relied upon in your case.

14I now turn to your personal circumstances. 

15You were born on 8 December 1993 in New Zealand and are now aged 27.  You were 26 when you committed these offences and are still a relatively young offender.  You have five living siblings who reside with your parents in Mortlake, with the exception of a brother who was deported to New Zealand following conviction for serious offending.  With this exception you come from a law abiding and hardworking family.  Your father is a shearer and your mother a wool classer. 

16You were educated to Year 10 at Hawkesdale College, and worked as a shearer yourself after leaving school.  You have a stable work history but following the travel and other restrictions caused by COVID-19 in 2020, you were only able to carry out limited work.  At the age of 18 you began using MDMA and this escalated in 2020 leading to the commission of the offences before the court.  You have never been married and have no dependents

17You fall to be sentenced for the single act of trafficking pleaded in Charge 1, but it is accepted that I am also able to have regard to the evidence relied upon in support of Charge 2 in assessing your overall criminality, whilst conscious of the requirement to avoid double punishment in that context.

18You have been held in custody during the COVID-19 pandemic restrictions, and I accept that this has significantly increased the hardship of imprisonment upon you.  You have twice been held in quarantine in custody for periods of 14 days.

19Your counsel also emphasised the fact that you will face the prospect of deportation to New Zealand following your release from prison, and I accept that the prospect of this will weigh heavily upon you.  You have no material connection to New Zealand and wish to have no contact with your brother who associates with outlaw motorcycle gangs.  Your other family and friends all reside in Australia. 

20Finally, I accept that your prospects for rehabilitation may properly be described as good, and I do not regard specific deterrence to be a prominent sentencing consideration in this case, although it remains relevant.

21In the result the sentence of the court is as follows. 

22On the charge of trafficking in a commercial quantity of a drug of dependence, you are convicted and sentenced to be imprisoned for 3 years. 

23On the charge of possession of equipment for use in trafficking you are convicted and sentenced to be imprisoned for 12 months.

24I direct that 6 months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. 

25This makes for a total effective term of imprisonment of 3 years and 6 months. 

26I direct that you serve 2 years before becoming eligible for release on parole.

27I declare that you have served 293 days by way of presentence detention, not including today. 

28But for your plea of guilty I would have imposed a total effective term of imprisonment of 4 years and 3 months and fixed a non-parole period of 2 years and 9 months.

29I will make the disposal order sought on behalf of the prosecution.

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