Director of Public Prosecutions v Varchione

[2023] VCC 1776

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-22-02417

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN VARCHIONE

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JUDGE:	HER HONOUR JUDGE HAWKINS
WHERE HELD:	Melbourne
DATE OF HEARING:	Friday 8 September 2023
DATE OF SENTENCE:	Tuesday 3 October 2023
CASE MAY BE CITED AS:	DPP v VARCHIONE
MEDIUM NEUTRAL CITATION:	[2023] VCC 1776

REASONS FOR SENTENCE
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Subject:Criminal Law - SENTENCING    

Legislation Cited:      Sentencing Act1991 (Vic), Crimes Act 1958 (Vic), Drugs, Poisons & Controlled Substances Act 1981 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169, Marchei v The Queen [2021] VSCA 58, Vincent v The Queen [2021] VSCA 99, Arici v The Queen [2019] VSCA 228

Sentence:                  Total effective sentence of 5 years and 8 months’ imprisonment. Non-parole period 3 years and 1 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. McVean	Office of Public Prosecutions
For the Offender	Mr L. Richter	Balmer & Associates

HER HONOUR:

1John Varchione, you have pleaded guilty to:

·        Two charges of trafficking in a commercial quantity of cocaine and ketamine.  These are Category 2 offences which each carry a maximum penalty of 25 years’ imprisonment;[1]

·        You have also pleaded guilty to one rolled-up charge of possession of  Methylamphetamine; 3,4-Methylendedioxy-N-Methylampehetamine        (MDMA); 1,4-Butanediol; Diazepam; Oxandroleone and Stanazolol. As the Crown concedes that your possession was not for the purposes of trafficking, the applicable maximum penalty for that offence is 12 months’ imprisonment;[2]

·        You have also pleaded guilty to one charge of knowingly dealing with the proceeds of crime, which carries a maximum penalty of 15 years’ imprisonment;[3]

·        One summary charge of failing to comply with a direction to assist, which carries a maximum penalty of two years’ imprisonment;[4] and

·        One rolled-up summary charge of possess a Schedule 4 poison, namely phenylbutazone, sildenafil and alprazolam, which carries a maximum of 10 penalty units, being a sum of just under $2,000.[5]

[1]Drugs, Poisons & Controlled Substances Act 1981 s 71AA(1).

[2]Ibid ss 73(1)(b), (c).

[3]Crimes Act 1958 (Vic) s 194(2).

[4]Crimes Act 1958 (Vic) s465AAA(5).

[5]Contrary to Crimes Act s465AAA(5).

Circumstances of Offending

2The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 31 August 2023,[6] the accuracy of which you accepted through your counsel.

[6]Exhibit P1 – Summary of Prosecution Open Plea.

3The charges against you arose from a search warrant executed by police on your home on the 14 July 2022.

4Investigators located a number of items including drugs, poisons, cutting agents, drug purity kits, mobile phones and large quantities of cash. A number of ziplock bags containing drugs, stored in a somewhat haphazard fashion in a Nutri-Grain box in the pantry and around the kitchen, were located.

5A total quantity of 682.1 grams of cocaine and 554.2 grams of ketamine were seized. The commercial quantity for each of these drugs is 500 grams. This forms the basis of Charges 1 and 2, trafficking in a commercial quantity of a drug of dependence.

6Various smaller quantities of MDMA, 1,4 butanediol, diazepam, methylamphetamine, stanozolol, and oxandrolone were located throughout the house. These are the bases for Charge 3, possession of drugs of dependence.

7While the search was being conducted, you unlocked a safe in the kitchen after notifying investigators of its existence. In this safe was $62,930 in cash. There was also another $2,100 cash in an esky in the kitchen. This total of $65,030 forms the subject of Charge 4, knowingly dealing with the proceeds of crime.

8Investigators asked you to provide PIN codes to your phones, explaining to you the requirement of s464AAA of the Crimes Act1958. Despite this, you refused. This forms the subject of Summary Charge 13, failing to assist at the direction of police.

9Also located during the search were quantities of the poisons Phenylbutazone, Sildenafil and Alprazolam and that forms the basis of the rolled-up Summary Charge 15, possess poison.

10You were interviewed by police and made full admissions to the offending. You explained your conduct as a means to get you and your mother back on track after you had both experienced a rough time following her diagnosis with clinical depression and needing to sell your house.

11While on remand for these matters, Investigators intercepted a letter written by you addressed to your former housemate providing instructions in relation to money ‘to be collected’, including amounts in the hundreds of thousands of dollars. In the letter, you wrote ‘hold the cash, it’s mine’. I note that this does not form the basis of a charge.

Nature & Gravity of Offending

12Commercial quantity drug trafficking is inherently serious, being a Category 2 offence and carrying that maximum penalty of 25 years’ imprisonment. Dealing with the proceeds of crime is also a serious offence, with that maximum penalty of 15 years' imprisonment.

13The prosecution concedes that the charge of possession of a drug of dependence was not for the purposes of trafficking and is at the lower end of the scale of seriousness.

14The prosecution submits that overall, in the circumstances of your case, your trafficking of two drugs of commercial quantities renders the objective seriousness of your offending within the mid-range offending for this type. I accept your counsel’s submission, however, that it would be a misapplication of sentencing principles to use each offence as an aggravating feature in respect of the other, leading to a potential double punishment. Accordingly, while I have regard to the overall circumstances in assessing such matters as the scale of your operation, I propose to assess each instance individually.

15While there are other important considerations, sentencing for drug trafficking offences is primarily a quantity-based regime. Your counsel submits that yours is not an objectively grave instance of the charge because:

(a)   The quantity in each instance is modest:

(i)The Ketamine was approximately 1.1 times the commercial quantity threshold of 500 grams; and

(ii)The Cocaine is 1.36 times the commercial quantity threshold of 500 grams. However, your counsel submits that as the drug was of particularly low purity the amount present was significantly short of a commercial quantity on pure weight.[7] However, that is not the basis with which you were charged.

[7]Defence submissions outline that the amount of pure cocaine was 142.85g, with the commercial threshold for pure cocaine being 250g, at Part 3 of Schedule 11.

(b)   He also points to the disorganised manner in which the various substances were stored throughout your house as demonstrative of a level of unsophisticated offending. Yours is not said to be part of a larger operation or to involve any other aggravating features such as the presence of weapons.

(c)   While you were motivated by financial gain, you fell into drug trafficking to fund your own addiction and support your mother. The Crown do not point to any indicia of luxurious lifestyle funded by your offending.

16Your offending does not bear the hallmarks, in my view, of a sophisticated drug trafficking operation. That said, you were the principal of the operation and engaged in some level of planning. You had two safes, a large amount of cash in the house, and the letter discovered by investigators whilst you were on remand indicates you were motivated by significant financial gain.

17I conclude that the objective gravity of each charge of trafficking is low level, while the proceeds of crime charge is a low to mid-range example of that offence. The charge of possess drugs of dependence is objectively high gravity.

18You have a long history of drug abuse and were motivated to sell drugs to fund your own addiction. This nexus may operate to mitigate punishment, but your operation went well beyond sustaining your personal habit. Your stated intention was financial gain. The mere fact that some of the profits were for the benefit of your mother does not diminish your moral culpability for your offending. Daniella Kocic,[8] psychologist, confirms that you do not suffer from any mental health conditions which might mitigate your moral culpability.[9] I conclude that your overall moral culpability is relatively high.

[8]Exhibit D2 – Psychological report of Daniella Kocic dated 25 August 2023.

[9]Ibid.

Personal Circumstances

19You are now 27 years old.

20Your childhood was marred by adversity. Your father abandoned your family when you were a young child and you did not have much of a relationship with him after that time. When you were about 11 years old, your mother became seriously mentally ill and was hospitalised for some months. Your grandparents took over your care. These circumstances created an unstable and difficult environment for you.

21You have a large network of family and friends who have supported and cared for you. Many of them have taken the trouble to attend court today in support of you. You have re-established contact with your father following your arrest and subsequent release on these charges.

22Your educational journey was disrupted due to your mother’s ill health, but you did attain a Year 12 Victorian Certificate of Applied Learning. You began working at Coles at age 15 and have been consistently employed throughout your life.

23At the time of your arrest, you were employed full time at Winslow Constructions as a senior supervisor, having begun work with the company as a labourer.

24As a result of your childhood adversity, you turned to recreational use of drugs. Your increased dependence soon turned to serious addiction, and you turned to trafficking to support that addiction.

Mental Health

25Daniella Kocic, the psychologist, assessed you for the purposes of this plea.[10] She opines that you meet the criteria for Adjustment Disorder and various Substance Use Disorders. She concludes that imprisonment will weigh more heavily upon you than it would for a person without these conditions.

[10]Ibid

References

26Mr Varchione, you have tendered 28 heartfelt character references from close friends, family and colleagues. They commonly express surprise at learning of your offending, speak of your strong work ethic, and attest to the ongoing support you will receive both in prison and when you are released into the community. Significantly, your mother and father both lament the childhood challenges which have contributed to your current predicament. Your current employer confirms a willingness to have you return to his employ upon your release.[11]

[11]Exhibit D7 – Character References: Tina Varchonie dated 1 August 2023; Graziela Gemayel dated 7 August 2023; Nicola Varchione dated 1 August 2023; Christine Varchione dated 21 July 2023; Paul Comito dated 1 August 2023; Valerio Martino Pistone; Russell Schofield dated 26 July 2023; Peter Carr dated 30 June 2023; Michelle Zammit dated 26 July 2023; Matthew Grieger dated 24 July 2023; Josip Brcic dated 18 July 2023; Joshua Cassar dated 11 July 2023; Jonathon Boukidis dated 4 August 2023; Jesse Zammit dated 2 August 2023; Georgia Fitzgerald dated 25 July 2023; Dylan Grinter dated 25 August 2023; Dora Boukidis; Anita Sagolj dated 24 August 2023.

27Mr Varchione, you have written a letter to the court[12] expressing your sincere apologies for your actions. While not seeking to excuse your behaviour, you provide a frank account of your childhood and subsequent life choices. You take responsibility for your actions and those choices. You do not seek to blame others for those choices. You also recognise the harm that drug related activities cause individuals and the community at large. You are to be commended for your commitment towards becoming a better person during your time spent on bail awaiting sentencing for these offences.

[12]Exhibit D6 – Letter authored by John Varchione dated 4 September 2023.

Remorse

28I accept your plea of guilty, and your disclosures to police at the execution of the search warrant at your house and your full and frank admissions to your friends and family are a genuine indication of your remorse and insight into your offending.

Sentencing Considerations

Plea of Guilty

29As I have already indicated, you made admissions to police when they executed the search warrant at your house and assisted them to open safes at your premises. You also took responsibility for drugs located in common areas of your house. You pleaded guilty at the earliest possible opportunity, being the committal mention of this matter. In doing so, you avoided the need for a trial, saved witnesses the stress of giving evidence in court and avoided the use of public resources that would have otherwise been spent in conducting a trial.

30The impacts of the COVID–19 pandemic remain keenly felt by the criminal justice system. Accordingly, you will also receive a discount in accordance with the principles enunciated in Worboyes’ case.[13]  and overall I take the significant utilitarian value of your plea of guilty into account in sentencing you today.

[13]Worboyesv The Queen [2021] VSCA 169.

Prospects of Rehabilitation

31You have usefully engaged with drug rehabilitation services whilst on bail.[14] You provided clean urine screens[15] for an extended period of time and have engaged with professionals to address the reasons underlying your offending. Furthermore, you have discussed your offending with your family and friendship support circle, who stand by you to support you on your journey from recovery, both during your time of imprisonment and upon your release.

[14]Exhibit D3 – BailSafe Report 5 September 2023.

[15]Drug screens for date range 28 September 2022 – 3 August 2023.

32Your prospects of reoffending have been assessed as low. Your lack of prior convictions, your strong work history, and your family and friendship support allow me to conclude that if you abstain from illicit drug use and choose not to associate with any peers involved in crime, your prospects of rehabilitation can be assessed as positive.

Extra Curial Punishment

33An application been made by the Crown to restrain your house. I accept that you will have to live with the potential risk that your mother may lose the roof from over her head during your period of incarceration. I will take this anxiety into account as a form of extra curial punishment.

Criminal History

34Significantly, you have no criminal history whatsoever and are of otherwise previously good character.

Mandatory Sentencing Provisions

35Charges 1 and 2, trafficking in a drug of dependence in a commercial quantity, are Category 2 offences under the Sentencing Act 1991. Pursuant to s5(2H) of that Act, the Court is required to impose a custodial order for this offence as no exceptional circumstances as set out in that section are submitted to exist in your case.

Sentencing Principles

36Courts have long recognised the deleterious impact of drug trafficking on the community and as such I accept that the dominant sentencing purposes relevant to your case, Mr Varchione, are general and specific deterrence, community protection, and denunciation, with general deterrence assuming particular importance. Given your lack of prior convictions, previous good character specific deterrence will be somewhat moderated, but will not be extinguished completely, as the temptation for you to re-engage in similar offending in the future remains if you relapse.  Your lack of prior convictions also reduces the need for community protection.

37Rehabilitation remains a relevant sentencing factor but will not displace the importance of other sentencing principles relevant to offences of this kind.

Sentencing Considerations

38Neither the maximum sentence nor current sentencing practices are the sole determinant of an appropriate sentence. There are many factors which must be taken into account in the overall sentencing synthesis.

39I must have regard to the relevant sentencing principles referred to in s5 of the Sentencing Act 1991 (Vic) and consider a range of matters such as the seriousness of your offending, your culpability, and your personal circumstances. I must balance the interests of the community in denouncing criminal conduct with the community’s interest in ensuring, as far as is possible, that offenders are rehabilitated and reintegrated into society. I must impose a sentence which is proportionate to the gravity of the offence, considering the circumstances. The sentence must be no more than is necessary to satisfy those various objectives of sentencing.

Current Sentencing Practices

40The Court of Appeal expressed an opinion in Gregory’s[16] case that current sentencing practices for commercial quantity drug trafficking in the upper category of that offence, that then existed, were inadequate.[17] I have regard to the principles set out in that case generally. However, but for your role in the offending, yours is not a case which has most of the aggravating features identified in Gregory’s case, such as the quantity of drugs involved, or a business conducted for a substantial period of time, a plea of not guilty, or an offender with prior convictions.

Comparative cases

[16]Gregory (a pseudonym) v The Queen [2017] VSCA 151.

[17]Ibid [100]

41The prosecution referred me to two authorities to provide guidance as to current sentencing practices for the charge of trafficking in a commercial quantity of drugs.[18] However, they acknowledge that the cases cited are not directly comparable to your offending, but I do have regard to those cases of Marchei and Vincent.

[18]Marchei v The Queen [2021] VSCA 58 (‘Marchei’); Vincent v The Queen [2021] VSCA 99 (‘Vincent’).

42Neither counsel, despite their best efforts, were able to locate any appropriately comparable cases to yours.  Mr Richter referred to Arici v The Queen[19] to illustrate the distinction which may be drawn between an unsophisticated offender versus the role played by a more highly organised offender.

[19][2019] VSCA 228.

43I have regard to all of those cases in a general sense.

Counsel’s Submissions on Disposition

44Counsel for the prosecution submits that having regard to all of the circumstances and applicable sentencing principles, your offending calls for the imposition of a term of imprisonment with a head sentence and non-parole period.

45Mr Richter concedes that you do not meet any of the criteria required to dispel the mandatory sentencing regime and, as such, you must be sentenced to an immediate term of imprisonment. Your prior good character, lack of prior convictions, relative youth, strong family support, job prospects and impressive progress on bail lead me to conclude that an extended period of supported transition back into the community on parole is appropriate to assist your rehabilitation and to protect the community.

Sentence

Imprisonment

46John Varchione, I sentence you as follows:

47On Charge 1 (trafficking in a drug of dependence in a commercial quantity [cocaine]) you are convicted and sentenced to four years’ imprisonment. This is the base sentence.

48On Charge 2 (trafficking in a commercial quantity of a drug of dependence [ketamine]) you are convicted and sentenced to four years’ imprisonment.

49On Charge 3 (possess drugs of dependence) you are convicted and sentenced to six months’ imprisonment.

50On Charge 4 (knowingly deal with the proceeds of crime) you are convicted and sentenced to 18 months’ imprisonment.

51On Summary Charge 13 (failure to assist at the direction of police) you are convicted and sentenced to six months’ imprisonment.

52On the rolled-up Summary Charge 15 (possess a poison) you are convicted and fined $1,500.

Partial Concurrency

53The sentence of four years on Charge 1 is the base sentence. I order that 12 months of the sentence on Charge 2; one month of the sentence on Charge 3; four months of the sentence on Charge 4 and three months of the sentence on Charge 13 be served cumulatively upon the sentence of four years on Charge 1.

54That is, the total effective sentence is five years and eight months’ imprisonment and I fix a non-parole period of three years and one month.

Pre-Sentence Detention

55Pursuant to s18 of the Sentencing Act 1991, the period of 68 days of pre-sentence detention (not including today) is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered into the court record.

Section 6AAA Declaration

56Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective sentence of eight years and six months’ imprisonment with a non-parole period of six years.

Ancillary Orders

57I make the two orders for forfeiture sought, by consent.

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