Director of Public Prosecutions v Sepe

[2017] VCC 698

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-00249

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIEN SEPE

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May 2017
DATE OF SENTENCE:	1 June 2017
CASE MAY BE CITED AS:	DPP v Sepe
MEDIUM NEUTRAL CITATION:	[2017] VCC 698

REASONS FOR SENTENCE
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Subject:         Trafficking not less than commercial quantity
Sentence:      4 years' imprisonment / non-parole 2 years 8 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Doyle
For the Accused	Mr S. Norton

HIS HONOUR: 

1Damien Sepe, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely 1,4-Butanediol, in a quantity that was not less than
a commercial quantity.  This offence occurred over a period of a month, between 1 July 2016 and 2 August 2016.  The maximum sentence for this offence is 25 years' imprisonment.

2You also pleaded guilty to one charge of trafficking simpliciter.  In relation to this charge, the drug that you trafficked was methylamphetamine and the trafficking occurred between the 3 July 2016 and 2 August 2016.  The maximum penalty for this offence is 15 years' imprisonment.

3When you were detected, you were found to be in possession of a drug of dependence, cannabis L.  As a consequence, you also pleaded guilty to
a charge of possession of a drug of dependence.  The prosecution did not allege that you possessed the cannabis for trafficking purposes.  In those circumstances, the maximum penalty in respect of Charge 3 is five penalty units.

4At the time that you pleaded guilty before me, you also pleaded guilty to
a summary charge that was transferred to this court from the Magistrates’ Court and your counsel, Mr Norton, told me that you consented to that summary charge being dealt with by me.

5Charge 45 was a charge of possession of a prohibited weapon without exemption.  This related to nunchucks found to be in your possession when you were arrested on 2 August 2016.  The maximum penalty for this offence is 240 penalty units or imprisonment for two years.

6You pleaded guilty to the charges at committal mention on 14 February 2017. For the purposes of sentencing you, I treat you as having pleaded guilty at the earliest possible opportunity.  For that you are entitled to a reduction in sentence.  Not only do your pleas of guilty signify genuine remorse on your part for your offending, but by pleading guilty, you have also saved the time and cost of what might have been a lengthy trial.  The reduction in sentence that I have afforded to you because of your pleas of guilty will be set out in the sentence that I will shortly deliver.

7The circumstances of your offending are summarised in a lengthy prosecution summary that was tendered and summarised by the prosecutor, Ms Mahady.  Your counsel, Mr Norton, accepted that the prosecution summary was accurate and forms a proper basis upon which I can proceed to pass sentence upon you.

8At the time that you pleaded guilty before me, I also heard a plea on behalf of Ms Cindy Simonoski, who was charged with similar offences on a separate indictment.  She was the target of a police investigation that suspected her of trafficking methylamphetamine and 1,4-Butanediol.  The investigation involved covert police operatives dealing with her and purchasing both methylamphetamine and 1,4-Butanediol from her.  Interceptions of
Ms Simonoski’s phone identified you as the person that was her supplier of the drug 1,4-Butanediol.  That is how the police identified you as a suspect and interception of your telephone conversations in turn revealed that you trafficked 14.16 litres of  1,4-Butanediol during the period of one month covered by
Charge 1.  The threshold for a commercial quantity of 1,4-Butanediol is
two kilograms or two litres.  You have thus trafficked well over the commercial quantity threshold over a period of one month.

9The telephone interceptions also revealed you trafficked 220.5 grams of methamphetamine and you had 65.4 grams in your possession for the purposes of trafficking where 50grams of this drug is a trafficable quantity.

10When arrested you were found to have .4 of a gram of cannabis, Charge 3, in your possession.  There is no suggestion you had this drug in your possession for other than your own use.

11In relation to the summary charge, you had a set of nunchucks in your possession when arrested.

12Your crimes are serious examples of what are serious offences.  Over a period of a month, you trafficked both 1,4-Butanediol and methylamphetamine in significant quantities.  I accept that you engaged in this offending to finance your drug habit and this reduces your moral culpability for the offending.  Your motivation was not to make money.  I also take into account that the drug
1,4-Butanediol is a relatively cheap drug which is readily available in the drug market for users and the prospects of large financial reward from trafficking this drug are low.  Nevertheless, drug trafficking is a prevalent offence that has
a number of unacceptable consequences for the community.  Any sentence
I pass must properly reflect application of the sentencing principle of general deterrence.

13You are aged 33.  You have a limited criminal history, but your most recent prior conviction is nonetheless relevant here.  In June 2014, you appeared in the Broadmeadows Magistrates’ Court charged with a number of offences that occurred on 21 June 2013.  Those offences included dishonesty-type offences, as well as possession of drugs, amphetamine and cannabis, trafficking amphetamine and recklessly and knowingly dealing with the proceeds of crime.  You were sentenced to an aggregate term of imprisonment of three months on those charges, as well as a 15 month community corrections order, which you completed just before Christmas of 2015. 

14There were conditions of the community corrections order that you undergo treatment and rehabilitation for drugs.  This offending for which I must sentence you, occurred about seven months after you completed that community corrections order.  A factor that distinguishes you from Ms Simonoski, is that she did not have prior convictions for anything.  This is the second occasion you have faced court for drug trafficking charges.

15I turn to matters relating to your background.  I was told and accept that you have battled drug use since your early teenage years.  Your drug use commenced with cannabis aged 13 and progressed to daily use within months.  In your late teenage years, you commenced using MDMA, speed and other party drugs.  To your credit, despite your drug use, you managed to forge
a successful career in the construction industry.  At age 26, you commenced using methamphetamine and developed a daily habit by the time of this offending.  Your daily methamphetamine use was managed by also taking
1,4-Butanediol.

16You were arrested and remanded in custody on 3 August 2016.  You were bailed on 10 October 2016, having spent 66 days in custody.  You were remanded again in custody after the plea and you have now served 99 days pre-sentence detention.  Whilst on remand on the first occasion, because of the over-crowding within the prison system, I was told and accept you were moved around from one prison to another.

17You are married and when arrested, you were estranged from your wife, but
I was told and accept that after your release on bail, you worked to rebuild your relationship with your wife.  You went to live with your parents and you were eventually joined there by your wife.  Your parents and your wife were in court to support you and I am satisfied that you have their on-going support.

18You were raised and educated in the northern suburbs of Melbourne and completed an apprenticeship as a carpenter and you have spent all of your working life in the construction industry.  Your wife gave evidence.  She told me that you have been in a relationship with her since 2002 and you married in 2011.  You have two children, both girls, aged five and four respectively.  Your wife is not a drug user, but she has long been aware of your use of drugs.  She told me at the time of your offending in 2013, your use of drugs was out of control.  She said she tried to help you but you would not listen to her.  She was unaware of your dealing in drugs. 

19When you were arrested in August of last year, she arrived home with your children to find the police at your home in Greenvale.  The children were crying, in what must have been a confronting scene for them.  Your wife took the children and went to your parents.  She had no contact with you after that for
a month and a half and visited you when you were transferred to Marngoneet prison.  She told me and I accept that she told you she would not live with you until your attitude towards ridding yourself from drugs improved.  After this, you both attended counselling.  You were at first reluctant.  Your wife gave evidence that the counselling seemed to open your eyes to the improvements you could make to your life by ridding yourself of drugs.

20I received into evidence a report dated 27 April 2017 from psychologist, Jodie Evans.  You were referred to her by your general practitioner on 11 October 2017, the day after you were bailed, and your wife attended with you.  That counselling concentrated on your marital relationship and the need to rebuild trust within it and this in turn means that you need to rid yourself of drugs.  According to the report, you related well to the counselling and there was no evidence at that time that you were taking drugs.  The records from your general practitioner revealed a number of urine screens between January and March of this year which did not detect illicit drugs.

21A complicating factor since your release on bail, is that you have undergone
a knee reconstruction and then subsequently injured your foot in a separate incident.  It was not suggested that this would affect the sentence I should impose.  It did however, disrupt the counselling you were having from
Ms Evans.

22Your wife told me and I accept, that since being charged and bailed and before I remanded you again in custody, you appear to have changed your attitude, concentrating on rebuilding your relationship with her and your children and ceasing contact with friends and acquaintances who were not a good influence for you.  Your wife told me that if you returned to drugs, your marriage would cease.

23I was told and accept that when not on drugs, you are a different person.  Your wife described you as a person with good morals who stands up for what is right.  I accept that you have helped others where you can, as evidenced by the character references received into evidence from Carl Drapper and Simply Vital.

24I received into evidence a report of 27 April 2017 from Odyssey House.  You attended there for assessment in January and you have subsequently been undergoing counselling and support for your drug addiction to ice.  In that report the writer said, inter alia:

“Mr Sepe explained that since his recent incarceration and   upcoming court hearing, his focus has been primarily on   his family and in particular, his wife and two young   daughters.  Mr Sepe expressed deep regret regarding his   past substance use and illegal activities, as a result of      which he will likely be separated from his family.  Mr Sepe   showed good insight around the impacts that his   substance use and related activities have had on himself   and the people around him.  Mr Sepe explained that while   he has no desire to return to illicit drug use, he nevertheless   wishes to continue with AOD counselling upon the   completion of his sentence.  He explained that this is   because he wants to take all possible measures to ensure   that he does not stray from his values in the future.”

25What comes through and I accept, is that you are remorseful and you are presently motivated to rid yourself of drugs.  I accept that absent drugs, you are a decent hard-working person who cares about his family and the community.  You are still relatively young and you can still make a good contribution to society.  I accept that your prospects for rehabilitation appear to be good, especially whilst you continue to enjoy the support of your wife and family.  But whether or not you achieve a full rehabilitation depends upon you staying away from drug use completely.  That is, the cloud that will hang over you for some time until you can demonstrate that you can remain drug-free outside of prison after your release.  I am mindful that you did not change your attitude to drugs, even after your first conviction for drug trafficking.

26In passing sentence, although the circumstances of offending are similar to
Ms Simonoski, in that you are each drug users who trafficked the drugs that you did to support your respective drug habits and the quantities of drugs trafficked are similar, in your case, you have a prior conviction for drug trafficking and you have other prior convictions and you have previously received a community corrections order not long before this offending.  Because this is the second occasion you have faced a court on drug trafficking charges in your case, the sentence imposed must properly address both general and specific deterrence.  The sentence must properly deter others from offending as you have and it must deter you from again offending in this way.  The sentence must also properly serve to denounce your offending.

27In submissions, Mr Norton accepted that because of the seriousness of your offending, I must impose an immediate term of imprisonment and fix
a non-parole period.  He submitted that an appropriate head sentence with
a  lengthy period on parole would serve to address all of the purposes of sentencing here.  In my opinion, this is not a case for fixing a short non-parole period.  In my view, to do so would not properly address both general and specific deterrence, given the fact you committed these offences seven months after you had completed a community corrections order for similar offending.

28Would you please stand, Mr Sepe. 

29On Charge 1, you are convicted and sentenced to a term of imprisonment of three years and nine months. 

30On Charge 2, you are convicted and sentenced to a term of imprisonment of six months.

31On Charge 3, you are convicted and discharged.

32On the summary charge, you are convicted and sentenced to a term of imprisonment of one month.

33I direct that three months of the sentence imposed on Charge 2, cumulate upon the sentence imposed on Charge 1, making a total effective sentence of four years.

34I direct that you serve a minimum term of two years' and eight months' imprisonment before being eligible for release on parole.

35I declare that there has been 99 days pre-sentence detention and that 99 days be reckoned as having been already served under the sentences passed this day and be deducted administratively.

36For the purposes of s.6AAA of the Sentencing Act 1991, had it not been for your pleas of guilty to the charges, I would have sentenced you to a total effective sentence of six years with a non-parole period of four years.

37I have been asked to sign forfeiture orders and disposal orders which were not opposed and I have signed them.

38I have also been asked to make an order for the taking of a forensic sample from your body.  The making of that order was not opposed and for the reasons stated in it, I have made the order, which means that a member of the police force may approach you to take a forensic sample from you, which in this case is a simple swab from your mouth.  If you refuse the police officer may use reasonable force to obtain the forensic sample from you.

39Are there any questions arising out of that, Mr Norton?

40MR NORTON:  No, Your Honour.

41MS DOYLE:  No, Your Honour.

42HIS HONOUR:  Thank you.

43MR NORTON:  As Your Honour pleases.

44HIS HONOUR:  Could you take Mr Sepe back into custody please.  I will just wait outside.  I will just leave the Bench for a short time.  Thank you.

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