Director of Public Prosecutions v Vassallo
[2022] VCC 602
•3 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA VASSALLO |
---
JUDGE: | Her Honour Judge Hawkins | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 April 2022 | |
DATE OF SENTENCE: | 3 May 2022 | |
CASE MAY BE CITED AS: | DPP v VASSALLO | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 602 | |
REASONS FOR SENTENCE
---
Subject:Criminal Law – SENTENCING
Catchwords: Pleas of guilty – 1 charge of trafficking in a drug of dependence in a commercial quantity – 1 charge of trafficking in a drug of dependence – 1 charge of cultivation of a narcotic plant not committed for the purposes of trafficking - 1 charge of knowingly deal with proceeds of crime - 1 charge of drive whilst disqualified – 1,4 Butanediol – Methylamphetamine – Alprazolam – lower range of seriousness – Bugmy principles – Verdins’ principles – relevant priors – open prospects of rehabilitation if abstinent from drug use – reduced risk of reoffending if abstinent from drug use – remorseful – early plea of guilty – COVID 19 considerations
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss71AA(1), 71AC, 72B, 81; Crimes Act 1958 (Vic) s194(1), 465; Road Safety Act 1986 (Vic) s30(1); Sentencing Act 1991 (Vic) ss3, 6AAA
Cases Cited:Bugmy v The Queen [2013] HCA 37; R v Worboyes [2021] VSCA 169; R v Verdins & Ors [2007] VSCA 102
Sentence: Total effective sentence of 38 months’ imprisonment with a non-parole period of 26 months’
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused | Mr T. Marsh | Stary Norton Halphen |
HER HONOUR:
1 Joshua Vassallo, you have pleaded guilty to:
·1 charge of trafficking in a drug of dependence in a commercial quantity, which carries a maximum penalty of 25 years' imprisonment;[1]
[1]Drugs, Poisons and Controlled Substances Act 1981 (Vic), s71AA(1)
·1 charge of trafficking in a drug of dependence, which carries a maximum penalty of 15 years' imprisonment. This is a rolled-up charge incorporating the drugs Alprazolam and 1,4-Butanediol;[2]
·1 charge of cultivation of a narcotic plant, which, if not committed for the purposes of trafficking that plant, carries a maximum penalty of 1 year's imprisonment and up to 20 penalty units, or 15 years' imprisonment in any other circumstance;[3]
·1 charge of knowingly deal with proceeds of crime, which carries a maximum penalty of 20 years' imprisonment;[4] and
·1 charge of drive whilst disqualified, which carries a maximum penalty of 240 penalty units or 2 years' imprisonment.[5]
2 You have admitted your prior criminal history.[6]
Circumstances of Offending
[2]Ibid s71AC
[3]Ibid s72B
[4]Crimes Act 1958 (Vic), s194(1)
[5]Road Safety Act 1986 (Vic), s30(1)
[6]Exhibit P2
3 The entire circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 19 April 2022,[7] the accuracy of which you accepted through your counsel.
4 On 14 July 2020, you were released on parole with electronic monitoring as part of your parole conditions. Investigators became suspicious of your movements upon review of the electronic monitoring report.
5 On 27 November 2020, a search warrant granted pursuant to section 81 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and section 465 of the Crimes Act 1958 (Vic) was executed at a Cheltenham address where you were residing.
6 When police arrived at that address, you, Maddison Thurgood and Zahny Hannan were present. You attempted to run out of the back door while holding two cannabis plants weighing 214.6 grams. This conduct relates to Charge 3 (Cultivation of Narcotic Plant – Cannabis L). You were subsequently placed under arrest.
7 During the execution of the search warrant, Ms Thurgood pulled a plastic bag out of her pants that you handed her to hide. The bag contained 81.4 grams of methylamphetamine at an 80% purity level which resulted in 65 grams of pure methylamphetamine. This conduct relates to Charge 1 (Trafficking of a drug of dependence – Commercial quantity).
[7]Exhibit P1
8During the search of the premises, police located various drug paraphernalia and other items. Namely, in relation to Charge 2, trafficking in a drug of dependence, the police located the following:
· a Dettol hand sanitiser bottle containing 20.5 grams of 1, 4-Butanediol;
· a glass jar containing 0.7 grams of 1,4-Butanediol;
· a container containing 1407.3 grams of 1,4-Butanediol; and
· nine bottles of Alprazolam.
9In relation to Charge 3, cultivation of narcotic plant namely Cannabis L, police located:
· a zip lock bag containing 7 grams of Cannabis L; and
· water pumps, transformers, ventilation, heat lamps and planters used for the cultivation of cannabis.
10In relation to Charge 4, knowingly dealing with the proceeds of crime, police located:
· $150.00 in the front lounge room;
· $160.00 in the dining room;
· $670.00 in the main bedroom; and
· a separate $5,795.00 in the main bedroom.
11During your record of interview, you made admissions that:
· You were in possession of, and trafficking methylamphetamine and Butanediol;
· The green vegetable matter was cannabis and the cannabis plants were for personal use and that you were ‘just using - using and selling just to use, really’[8] in relation to the Alprazolam;
· You were trafficking by ‘selling shard and stuff and hard's not the best drug to use, neither's juice and xannies. So the weed was literally just to try and fix what I'd already fucked up’ and you said you had been ‘fucked up for the last 6 years but especially the last 4 months’;[9]
· You paid for half the ice and it was eight or nine grand and owed another fifteen to sixteen grand for it and you were just doing it to have stuff to smoke for yourself;
· Some of the cash was from selling stuff and a lot was from your work;
· There was GBH in the house but it tastes disgusting and a guy just dropped it off for you to try;
· You knew police were at the door, so you gave the bag of methylamphetamine to Ms Thurgood to hide and you grabbed the two cannabis plants to take outside;
· The cash at the house was half from working and half from drug trafficking;
· You caught up with a mate that day and ‘had a ciggie’[10] and stayed in the car while you were with him;
· You also said that you 'keep the GBH in little Dettol bottles but wouldn’t drive around with it and the only juice in the car would’ve been already in a syringe';
· And finally you said, ‘…You got me for the drugs, that's fine, I accept that. Like, I shouldn't be a fuckin' junkie’.[11]
[8] Exhibit P1 at paragraph [9]
[9] Ibid
[10] Ibid
[11] Ibid
12You were remanded after that record of interview.
Nature & Gravity of Offending
13Upon arrest, you made those admissions to police to the effect that you were trafficking methylamphetamine, butanediol and alprazolam and were growing cannabis for personal use. I note that all of the drug offences are charged on a single date basis. There is no evidence before the court of the number of transactions or quantities sold or other indicia of a broader commercial enterprise.
14Fifty grams is the commercial quantity threshold for the trafficking offence to which you have plead guilty. You were found to have just over 64 grams of methylamphetamine. The two cannabis plants were also located at your residence. I accept Mr Marsh’s submission, made on your behalf, that you were selling these drugs in order to finance your personal drug habit, and the cannabis was for your personal consumption. You will be sentenced accordingly.
15 I conclude that given the quantum of the drugs located, this particular instance of trafficking in a commercial quantity of methylamphetamine sits at the lower range of seriousness. I also accept that the charges of trafficking sit at the lower end of the range.
16 The conduct alleged in relation to the charge of dealing with the proceeds of crime is clearly part and parcel of the trafficking charge. Accordingly, this offence will attract substantial concurrency with the trafficking charges.
17 As you have experienced, illicit drug abuse ruins lives. You have suffered, your family have suffered, and the community has suffered. The trafficking of drugs significantly contributes to this destruction. Accordingly, the court must denounce your conduct in the strongest possible terms.
18 The purpose of your sentence is to specifically deter you from offending in this manner again in the future. It is also important to send a clear message to other would-be drug traffickers that they face a significant term of imprisonment should they turn to selling drugs to support their habits. The punishment ought be just in all the circumstances and also take into account your prospects of rehabilitation.
Personal Circumstances
19You were born in April 1996 and were approximately 24 years old at the time of your offending. You are now 26.
20 Sadly, during your childhood, you experienced fraught family relationships. You were born in New South Wales. Your parents separated when you were aged 2. Between the ages of 6 and 10 you were exposed to sexual abuse from an uncle in Sydney. Both of your parents moved to Melbourne and re-partnered. You moved in with your mother and her new partner, which came to be an environment characterised by alcohol abuse and physically abusive behaviour perpetrated by your stepfather on your mother.
21 Your stepfather, Mr Darren Wilson, has provided a frank and honest reference to the court in which he acknowledges that you witnessed arguments with your mother that you should never have had to face.[12] He acknowledges that you became your mother’s protector. Mr Wilson describes your love of football, and describes how you secured a traineeship for a freight logistics company and were doing well for yourself until drugs took over your life. He witnessed your demeanour change, you lost your traineeship and your relationship with family members declined. Since your remand, Mr Wilson describes the tremendous work you have done in rebuilding your family relationships.
[12]Exhibit D4
22 Your mother, Ms Lynda Wilson, who I see appears on this link today, describes your close and loving relationship.[13] You enjoy her full support. She painfully describes her lack of awareness of your childhood abuse. She regrets not picking up on the obvious signs throughout your teenage years. Despite the impact that drugs have had on you, and by consequence on the rest of your family, she remains truly supportive and encourages your plans to study to improve yourself, and to increase your chances of being able to turn your life around upon your release.
[13]Exhibit D5
23 During your teenage years, you were diagnosed with ADHD and prescribed dexamphetamine. Unfortunately, your biological father was a cocaine user and introduced you to stimulant use at around the same time. You soon supplemented your prescription medication with illicit stimulants.
24 Mr Marsh, submits that your background of exposure to violence, drug and alcohol abuse is a significant matter in explaining your ongoing use of substances as an adult. He submits that your background falls within the principles considered in Bugmy v The Queen.[14] I accept this submission.
[14][2013] HCA 37
25 Mr Bernard Healey, consultant clinical psychologist, assessed you on 15 December 2020.[15] He describes you as a person of ‘sound average intellectual capacity’[16] whose psychological make-up elicits a vulnerability to substance misuse. Mr Healey also identifies impulsivity as a consequence of your diagnosis of ADHD which may become exacerbated on stimulant intoxication. He also identified elevated levels of depression.
[15]Exhibit D2
[16] Ibid
26 You were also assessed by Dr Nina Zimmerman, consultant psychiatrist. In her report dated 11 April 2022,[17] Dr Zimmerman observed you to be dysthymic on interview which was consistent with your account of being distressed at finding yourself in protection in prison. Dr Zimmerman noted your account of having been exposed to family violence in childhood; your disclosure of significant sexual abuse; and opines that you meet the criteria for a diagnosis of PTSD. Dr Zimmerman does not believe that you currently meet the criteria for a psychotic disorder or enduring mood disorder.
[17]Exhibit D3
27 Significantly, in Dr Zimmerman’s view your diagnosis of PTSD means that there is a risk that imprisonment will be more burdensome for you than for others.
28 You are currently remanded in a protection unit together with sex offenders. You find this environment particularly difficult given your experience of childhood sexual abuse and your diagnosis of PTSD.
Criminal History
29 I note that you have relevant prior convictions for possession and drug trafficking.
Rehabilitation
30These prior convictions demonstrate that you have struggled with drug use for much of your adult life and offended in order to support that habit. You have sustained periods of work from time to time. Whilst previously incarcerated at Fulham prison, you worked in the prisons’ nursery and discovered a passion and aptitude for horticulture. You have gained admission into a Bachelor of Agricultural Science degree course and aspire to complete this degree remotely and ultimately work as a plant geneticist.
31 Clearly, your prospects of rehabilitation are intimately linked to remaining abstinent from drug use. Dr Zimmerman notes that a long-lasting remission from drug use will require interventions that target your past abuse, as well as the substance abuse you have engaged in.
32 Mr Vassallo, you are not technically a young offender, but at age 26 you are still a young man with your life in front of you. I consider that if you can remain abstinent from drugs, engage in some prosocial activities like education, your prospects of rehabilitation are entirely open.
Risk of Reoffending
33However, your risk of reoffending is inextricably linked to your drug abuse. If you remain using drugs you will continue to reoffend. If you can remain abstinent, get assistance with working through your PTSD and gain an education, your risk of reoffending will be substantially reduced.
Remorse
34I note that you made admissions to police and have accepted responsibility for your actions. You bitterly regret lapsing back into drug use after a lengthy period of sobriety and you are disappointed with yourself.
35Dr Zimmerman notes that there are no psychiatric factors that impact on your capacity to express remorse and that you are aware that trafficking drugs was the wrong thing to do.
Plea of Guilty
36
You have pleaded guilty at the earliest possible opportunity at the committal mention of this matter. Your plea of guilty has a utilitarian benefit in that it spares the court and the community the time and cost of a trial. This benefit is rendered more significant given the substantial backlog in the court created by the
COVID-19 pandemic. Accordingly, your plea of guilty will attract ‘an actual and palpable amelioration of your sentence’.[18]
[18]R v Worboyes [2021] VSCA 169 at paragraph [35]
Moral culpability
37Your offending occurred in the furtherance of your drug addiction. At this point in your life, given your background of sexual abuse, dysfunction, family violence and early exposure to drug use by your parents, your sentence ought be somewhat moderated.[19] You should not necessarily expect that if you continue to offend in a similar manner in the future, that any future sentence would be similarly moderated.
[19]Bugmy v The Queen [2013] HCA 37
38 I also note the likelihood of the diagnosis of PTSD making imprisonment more burdensome upon you, particularly in the protection environment, than upon other prisoners.[20]
[20] R v Verdins & Ors [2007] VSCA 102
Current Sentencing Practices
39Trafficking in a commercial quantity of a drug of dependence is a ‘category 2 offence’.[21] Accordingly, the court must impose a sentence of imprisonment unless certain specific circumstances exist. Mr Marsh, on your behalf, fairly concedes that your circumstances do not place you outside of the mandatory imprisonment category.
[21]Sentencing Act 1991 (Vic), s3
40 I have regard to current sentencing practices for offences of the type with which you were charged.
41Given the overlapping nature of the present charges, I give effect to the totality principle, particularly in making orders for cumulation and concurrency and I note that I must also avoid imposing a crushing sentence upon you.
Sentence
42 Joshua Vassallo, I sentence you as follows:
43 On Charge 1, trafficking in a commercial quantity of drugs, you are convicted and sentenced to 35 months' imprisonment. This is the base sentence.
44 On Charge 2, trafficking in drug of dependence, you are convicted and sentenced to 19 months' imprisonment.
45 On Charge 3, cultivation of a narcotic plant, not for the purposes of trafficking, you are convicted and sentenced to 3 months' imprisonment.
46 On Charge 4, knowingly dealing with the proceeds of crime, you are convicted and sentenced to 12 months' imprisonment. 3 months of this sentence is to be served cumulatively upon the sentence imposed on Charge 1.
47 On the related summary charge of driving whilst disqualified, I convict and fine you $1,500.00. I make no order against your licence.
48 The total effective sentence you are to serve is 38 months' imprisonment.
49 I order you serve a minimum of 26 months' imprisonment before becoming eligible for parole.
Pre-Sentence Detention
50
Pursuant to section 18 of the Sentencing Act 1991, the period of 522 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 in the Court records.
Section 6AAA Declaration
51 Pursuant to section 6AAA 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 term of 48 months' imprisonment with a non-parole period of 32 months.
Ancillary Orders
52 I make the disposal and forfeiture orders sought by consent.
- - -
0
3
0