Director of Public Prosecutions v Tiberi
[2022] VCC 1930
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-01159
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER TIBERI |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 November 2022 |
DATE OF SENTENCE: | 8 November 2022 |
CASE MAY BE CITED AS: | DPP v Tiberi |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1930 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Traffick drug of dependence – possess drug of dependence - handle stolen goods - deal with property suspected of being proceeds of crime
Legislation Cited:
Cases Cited:The Queen v Tiberi [2013] VSC 710
Sentence:12 months' imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Shaw | Office of Public Prosecutions |
For the Accused | Mr S. Tovey | Marcevski Lawyers |
HIS HONOUR:
1Peter Tiberi, you have pleaded guilty to: one offence of trafficking in a drug of dependence, for which the maximum term of imprisonment is 15 years; five offences of possession of a drug of dependence, for which the maximum penalty is five years' imprisonment or a fine of 400 penalty units; and one offence of handling stolen goods, for which the maximum penalty is imprisonment for 15 years.
2You have also asked the court to take into account and have pleaded guilty to two related summary offences, both of which are offences of dealing with property reasonably suspected of being the proceeds of crime, for which the maximum penalty is imprisonment for two years.
3You have admitted a criminal record which contains one prior conviction for kidnapping and intentionally causing serious injury for which you received sentences of four years and two years and six months respectively with a total effective sentence of five years' imprisonment and a non-parole period of three years. You were granted parole and successfully completed your parole in about the middle of 2017.
4The prosecution has provided me with a Prosecution Plea Opening dated
7 October 2022 and that was read to the court - this is Exhibit A. Suffice to say that the offending arose out of police obtaining information about a storage unit at a storage facility in Oakleigh South where you were seen to be going on a regular basis with another man and unlocking and locking the padlocks to the particular storage unit at that facility.5Police installed an optical and surveillance device in the yard and were able to capture information about your comings and goings, which led them to execute a search warrant on the facility and that particular storage unit where they found items that suggested that you had been using or storing or cutting or dealing with drugs at that facility. There was also other evidence which led to Charge 7 on the indictment, the charge involving the handling of stolen goods, being three sealed plastic bags containing prison officer uniforms and various items of identification of the prison officer to whom the uniforms belonged and other people who had had their identification items stolen in burglaries during 2017.
6Simultaneously, police also executed a search warrant at your home address and a rear bungalow attached to the garage at those premises. They found a number of other items which underpin Charges 1 and 2 on the indictment involving the offences of trafficking in MDMA and possession of methylamphetamine, being a total of 38.1 grams of high purity ranging from
79 to 87 per cent.7There were other items seized, including $3600 in cash, the subject of related summary offence no.12, and other items associated with the property the subject of related summary offence no.18.
8In particular, police found a quantity of MDMA tablets. In one bag there were 225 tablets and some white powder, and containing a total of 76.4 grams of
14 per cent purity MDMA, and in all, with other quantities of MDMA found at your home address there were a total of 81.1 grams of MDMA, which underpins the charge of trafficking in a drug of dependence, Charge 1 on the indictment.9There was also found at those premises a total of 38.1 grams of methylamphetamine, the subject of Charge 2, to which I have already referred, and 32.3 grams of stanozolol, which is the subject of Charge 3 on the indictment.
10I note that you were subsequently charged with much more serious offences and that caused you to be incarcerated for just over a year until you were able to obtain bail and then subsequently negotiate pleas to the charges on the indictment and the related summary offences. You were in custody for 372 days prior to being granted bail.
11Turning to matters personal to you, you were born in February 1987. You are now 35 years of age. Your counsel provided me with an outline of plea submissions on your behalf dated 28 October 2022 - Exhibit 1 on the plea. I was also provided with a number of references from family members and people associated with your employment, previous employment and businesses - those are Exhibit 2 on the plea.
12Your counsel took me to your background. It is clear that you had a good upbringing with supportive parents and siblings, good schooling and you progressed to a TAFE course where you obtained a Certificate 3 in building and construction. It was around about that time, I am told, that you began to experiment with illicit substances and before long you had become involved in the use of methylamphetamine, which by 2011 had become ”quite intense”.
13You have a good work ethic. You are successful as a carpenter and in your own businesses as a carpenter, and despite your drug use have been able to maintain both employment and/or a business in that field. That is very much to your credit and has no doubt been an important part of your rehabilitation over recent times.
14It seems that the use of methylamphetamine led you to the drug milieu which in turn formed the context in which the offences, the subject of your prior conviction, were committed. Those were serious offences and I was invited to peruse the sentencing reasons of His Honour Justice Lasry in the Supreme Court, who sentenced you for those matters in December 2013[1].
[1]The Queen v Tiberi [2013] VSC 710
15I note that His Honour Justice Lasry was impressed on that occasion by the large number of references from members of your family and friends of your family that were presented to him, and he went on to say:
‘They are an impressive collection of testaments to your positive qualities. You have stunned your family with your conduct. Fortunately for you, they all continue to believe in you, and in the references they have urged me to conclude that your prospects for rehabilitation are very good because your conduct is so out of character with the person they know. They urge me to sentence you in the knowledge that when you are released from custody you will return to a supporting and loving family. Several of your family and friends have visited you in custody. That must be a sobering experience for them. Those who know you and are participants in the building industry have made it clear that on your release work will be provided for you'.
16His Honour went on under the heading of 'Further Sentencing Considerations' to note that you made choices in the lead-up to and in the commission of the offending for which he was sentencing you, which you must have known were extremely bad choices. Those choices included your willingness to associate with the main protagonist in that series of offences, who was obviously a person with little or no regard for the law and who regarded himself as entitled to exact punishment on the victim.
17At paragraph 30 he noted that Mr Newton, the psychologist who wrote a report for the purposes of that sentencing, had made clear in his report that, 'Your abstinence from methylamphetamine is under an enforced regime because you are in custody', and His Honour went on to say ‘and he says your capacity to transfer this abstinence to a community setting remains untested'.
18His Honour went on to say:
‘He points out, and it is very important, that you have a need for drug education and counselling to equip you with the skills in relapse-prevention and harm-minimisation. Such treatments should commence, in my opinion, as soon as possible and prior to your release. It will also need to continue for some time after your release. You should acquire, as Mr Newton said, a clear focus about the risks and dangers of drug use and develop an insight into the consequences of participation in the drug world whether as a consumer or trafficker or enforcer or both.’
19He goes on in paragraph 32 to say:
‘I have concluded that in all the circumstances a sentence should be imposed on you which will cause you to reflect carefully on your conduct and what led to it.’
20I can only conclude that by taking out the lease on the storage unit in 2018 and, by April 2019, again being involved in the same kind of drug milieu that led to your sentence by His Honour Justice Lasry in 2013, you had not learned the lessons that His Honour hoped you would. It does seem extraordinary to me that a man of your abilities, your work ethic, with your support structures and your friends, has not heeded that warning and has apparently not learnt from your previous dalliance in the milieu involving the use of drugs, in particular methylamphetamine.
21You are entitled to full credit for your pleas of guilty to these offences, particularly so in these COVID times, and particularly so given that you were in custody on much more serious charges. I give you credit for the fact that you have pleaded guilty in a relatively timely manner to these offences and you are entitled to a substantial reduction in the sentence that might otherwise have been appropriate for all those matters.
22I am inclined to accept on the basis of the references from family members, friends and business associates that you are now remorseful. I note that you have, since 2019, been in a relationship that seems to be ongoing and fulfilling, and that too is a protective factor and one which may well lead you to genuinely be remorseful for this conduct. I conclude and hope that the references are right when they suggest that you have good prospects of rehabilitation and I hope that this time at least, being arrested for these matters will have given you a sufficient reminder of the inevitable consequences of further dalliance in the drug using and dealing milieu, particularly in the use of methylamphetamine.
23Your counsel has also urged me to take into account: your good prospects of rehabilitation, the delay, the circumstances of your incarceration, the strict bail conditions under which you were forced to operate, which went for a substantial period since your release from custody in 2020. He has urged me to conclude that the time you spent in custody is sufficient punishment so as to warrant the unusual course of imposing a sentence which does not involved any further punitive element.
24He urges me to conclude that, had all these matters been dealt with without the overhang of suspicion of you being involved in more serious drug offending, these charges would have been dealt with in the Magistrates' Court and likely with a non-custodial sentence.
25It may be that the matters could have been dealt with in the Magistrates' Court but I am not persuaded that a non-custodial sentence would have been appropriate in the circumstances. It seems to me your prior conviction is highly relevant and you have ignored the words of His Honour Justice Lasry in his sentencing remarks.
26So there is a need for denunciation by this court of your offending. Your counsel, I accept, is right in saying that the most serious of the offences is Charge 1 on the indictment. But the charge of handling stolen goods, the subject of Charge 7, is also a very serious offence. The possession of prison officer uniforms and identification may not be associated with clear evidence that it was intended to be used in some other sort of nefarious way, but there is a very strong public interest in denouncing the unlawful possession and handling of clearly stolen goods of such a nature, and there is a high degree of need for a sentence which pays proper regard to general deterrence.
27I also regard the offence the subject of related Summary Charge 18 of dealing in the various items listed there, which include three motorcycles and two jet skis, as a serious example of that offence. Summary Charge 12 is less serious and I take into account that there was money found and that there might be some overlap between that offence and the offence of trafficking in a drug of dependence, the subject of Charge 1 on the indictment.
28The offence of trafficking in a drug of dependence is a scourge on society and requires the court to impose sentences that have the capacity to deter you and others, particularly when they are committed by people who have had a significant warning shot across their bows from a previous conviction, albeit not for that specific offence. Also in your case the possession of methylamphetamine is an offence for which individual deterrence is to be given significant consideration. The fact that all of these offences occurred against the backdrop of the previous conviction also requires me to give proper consideration to individual deterrence.
29I do regard your prospects of rehabilitation as at least reasonably good and possibly better than that, given that you are in a relationship. But there is a nagging feeling that you may still be tempted to resume your association with those concerned in the drug trade, despite the very strong and favourable references from the referees about whom I have already spoken.
30Doing the best I can to marry all the competing matters that bear upon the sentencing process in this case, I am ready to impose sentence upon you. So, would you please stand?
31Dealing first with the indictment:
- on Charge 1 of trafficking in a drug of dependence, I convict you and sentence you to imprisonment for seven months;
- on Charge 2 of possessing a drug of dependence, namely methylamphetamine, being 38.1 grams, I convict you and sentence you to imprisonment for three months;
- on Charge 3 of possessing a drug of dependence, namely stanozolol, I convict you and sentence you to a fine of $500;
- on Charge 4 of possession of a drug of dependence, namely methylamphetamine, I convict you and sentence you to a fine of $3000;
- on Charge 5 of possessing a drug of dependence, namely MDMA,
I convict you and sentence you to a fine of $500;- on Charge 6 of possession of a drug of dependence, namely testosterone and nandrolone, I convict you and sentence you to a fine of $500;
- on Charge 7 of handling stolen goods, I convict you and sentence you to imprisonment for a period of five months.
32As to the summary charges:
- on Summary Charge 12 I convict you and sentence you to imprisonment for a period of one month;
- on Summary Charge 18 I convict you and sentence you to imprisonment for a period of three months.
33The sentence on Charge 1 on the indictment is the base. I order that one month of the sentence on Charge 2, three months of the sentence on Charge 7 and one month on the sentence on Summary Charge 18 be served cumulatively upon each other and upon the base sentence of imprisonment of seven months, making a total effective sentence of imprisonment for 12 months.
34I order that 372 days' pre-sentence detention be treated as time served on the sentence that I have imposed and deducted administratively from the period of imprisonment you would otherwise be required to serve, which means that that will ensure your immediate release.
35But for your pleas of guilty, I would have sentenced you to imprisonment for a period of 20 months.
36I make the orders for forfeiture and disposal in accordance with the drafts with which I have been provided.
37Are there any other matters, gentlemen?
38COUNSEL: No, Your Honour.
39HIS HONOUR: All right, you can leave the dock and take a seat, subject to any formalities that need to be - - -
40MR SHAW: Your Honour, could I just check one thing with the orders for cumulation?
41HIS HONOUR: Yes.
42MR SHAW: So, the base is seven months.
43HIS HONOUR: Seven months.
44MR SHAW: Charge 2 one month.
45HIS HONOUR: Yes.
46MR SHAW: Making a - Charge 7, three months, making it 11.
47HIS HONOUR: And Charge 18, Summary Charge 18, one month.
48MR SHAW: Yes, so Summary Charge 12 is wholly concurrent. That was my query.
49HIS HONOUR: Wholly concurrent, yes, because I thought that followed.
50MR SHAW: It is implicit I know but I thought I had better check before
Your Honour rose.51HIS HONOUR: Yes, that is correct.
52MR SHAW: Thank you, Your Honour.
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