Director of Public Prosecutions v Verdesoto

[2021] VCC 1319

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
 Not Restricted
Suitable for Publication

Case No. CR-20-01728 and CR-20-01727

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN JOSEPH VERDESOTO

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JUDGE:	Her Honour Judge Leighfield
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2021
DATE OF SENTENCE:	10 September 2021
CASE MAY BE CITED AS:	DPP v Verdesoto
MEDIUM NEUTRAL CITATION:	[2021] VCC 1319

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:          Make false statutory declaration – trafficking in drugs of dependence – negligently deal in proceeds of crime – possess imitation firearm – possess prohibited weapon – commit indictable offence whilst on bail – relevant but dated prior criminal history – totality – valuable plea of guilty – delay – impact of physical health issues and Covid-19 on the burden of imprisonment – reasonable prospects of rehabilitation

Sentence: Total effective sentence of 18 months’ imprisonment - pre-sentence detention of 542 days declared as time served – on two summary offences, 9 month adjourned undertaking with treatment conditions – s6AAA declaration: 3 years with a non-parole period of 2 years and 1 month

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms Jessica Fallar	Office of Public Prosecutions
For the Accused	Mr Chris Pearson	JDA Criminal Lawyers

HER HONOUR:

Introduction

1John Verdesoto you have pleaded guilty to nine charges arising from two different sets of offending.

2On indictment L10216211.1 (‘the first indictment’) you have pleaded guilty to a single charge of making a false statutory declaration, which arises from an incident occurring on 6 March 2019.  The maximum penalty for making a false statutory declaration is 5 years’ imprisonment or 600 penalty units or both.

3On indictment K11993708.2 (‘the second indictment’) you have pleaded guilty to two charges of trafficking in a drug of dependence (charges 1 and 2) and two charges of negligently dealing with proceeds of crime (charges 3 and 4). These charges arise from items located during the execution of search warrants at your properties on 30 July 2019.  The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment, and for negligently dealing with proceeds of crime is 5 years’ imprisonment.

4Also arising from those same searches are four related summary offences, which you have consented to this court hearing, and have also pleaded guilty to.  Those charges are possession of cartridge ammunition without a licence (charge 6) for which the maximum penalty is 40 penalty units; possession of an imitation firearm as a non-prohibited person (charge 7) and possession of a prohibited weapon (charge 12) for both of which the maximum penalty is 240 penalty units or 2 years’ imprisonment; and commit an indictable offence whilst on bail (charge 16) for which the maximum penalty is 30 penalty units or 3 months’ imprisonment.

5You were aged between 59 and 60 years of age at the time of each of these offences.

Circumstances of the Offending, Interview and Remand

6The full circumstances of the offending are set out in the two ‘Amended Prosecution Opening[s] for Plea’ which were tendered as Exhibits A and B on the plea.

7However, in shorter compass, you own two properties in Station Street in Norlane which are only a few doors down from each other which I will refer to as ‘Property 1’ and ‘Property 2’. Property 1 is a property which you had bought for yourself to live in after receiving a payout for a work injury. You bought this property because it was only a few doors down from your parent’s home. Property 2 is the house which was previously owned by your parents and which you inherited upon your mother passing away.

8As at July 2018, you were living in Property 1, and regularly visiting Property 2 whenever you needed to get, or do, something at the property. You were also renting out a room in Property 2 to a tenant.

9On 31 July 2018, police executed a search warrant on both of your properties and seized a large number of items which included various tools, weapons and other items. Amongst the items seized was an Ozito brand twin cutter. You were arrested, interviewed, charged with forty-one offences, and remanded into custody on that day. You were then bailed on 7 September 2018 – some 37 days later.

10Following the execution of the search warrant, Detective Senior Constable Horvath (who is the informant on the first indictment) went through the process of returning stolen items to their owners. One of the owners was a Mr Daly who had been the victim of a burglary at Rhett Automotives on 28 January 2018. At the time of the burglary Mr Daly had provided a list of tools that were stolen from the premises, one of which was an Ozito Twin Cutter. In August 2018 Mr Daly attended at the police station and identified a number of the tools which had been seized from your house as items which belonged to him. Those items were then returned to him. It appears that he did not identify the Ozito Twin Cutter at this time.

11The charges then proceeded through a number of steps in the Magistrates’ Court before being listed for a contest mention on 30 April 2019. On 6 March 2019, in anticipation of that contest mention proceeding, you attended at the Corio Police Station and signed a statutory declaration, witnessed by a police member. In that declaration you outlined the provenance of various items which had been seized, including the Ozito twin cutter. You stated that the twin cutter had belonged to your late father – a statement which was later found to be false (charge 1 on the first indictment – make false statutory declaration).

12On 30 April 2019 you attended at the Magistrates’ Court for the contest mention and whilst at Court you provided a number of documents to the police prosecutor including the statutory declaration. You did this with a view to having the item returned to you, which in turn could have led to the withdrawal of the charge relating to that item. In the aftermath of the contest mention, the prosecutor provided the documents to D/S/C Horvath noting that they appeared to be false. This prompted a further investigation by the informant during which it was ascertained that the Ozito twin cutter seized from your property actually belonged to Mr Daly, and that the type of twin cutter in question only became available for purchase in Australia some five years after the date on which your father had passed. 

13On 30 July 2019, police again attended at your properties to execute search warrants. You were present at Property 1 and answered the rear door when police knocked upon it. When asked what might be found in the house you admitted that you had marijuana in the house, but denied having any ‘ice’ or firearms. You also later directed police to a large amount of cash in a laundry basket. When asked about what might be located at Property 2, you told police that there was marijuana on the fireplace in the BBQ area, however this was not located at the time.

14As a result of the execution of the warrants at each address, the following items – as relevant to the charges from the second indictment and the related summary charges – were located:

(i)a sunglass case containing a plastic bag of methylamphetamine in the kitchen at Property 2 (later analysed as weighing 103g with a purity of 83%, yielding 85g of pure methylamphetamine) (charge 1 – trafficking in a drug of dependence);

(ii)a resealable bag containing green vegetable matter (‘GVM’), two plastic containers with green vegetable matter, a cigarette container with five cigarettes containing green vegetable matter, a chewing gum container with cannabis seeds, and one clear resealable bag with chopped green vegetable matter at Property 1 (all later analysed to be cannabis, with an approximate total weight of 56g); and three zip lock bags of cannabis in an esky at Property 2 (later analysed to be cannabis with a total weight of 1.11kg) (charge 2 – trafficking in a drug of dependence);

(iii)$10920 cash in the bottom of a laundry basket at Property 1 (charge 3 – negligently deal with proceeds of crime);

(iv)a guitar in a case; and five bicycles at Property 1; and three Wiltshire knives; a compound bow in a black case; Canon, Sony and Nikon cameras;  and a Robert Allenby framed picture at Property 2 (charge 4 – negligently deal with proceeds of crime);

(v)a box containing 50 rounds of .22 ammunition in the kitchen at Property 1 (related summary charge 6 – possess ammunition without a licence).;

(vi)a black gel gun and a gel rifle in a bedroom at Property 1 (related summary charge 7 – possess imitation firearm as a non-prohibited person); and

(vii)a crossbow, three sling shots, two sais and a homemade taser located inside the house and garage at Property 1; and a further homemade taser located  in the car at Property 1 (related summary charge 12 – possess prohibited weapon)

15At the time of police attending at the address, executing the search warrants and locating the methylamphetamine, you were still on bail in respect of charges arising from the original search warrants (related summary charge 16 – commit an indictable offence whilst on bail).

16You were arrested and transported to the police station, whereupon you were interviewed in respect of all of the charges currently before the court. You had the following to say:

(a)   re the charge of making a false declaration: you maintained that everything was owned by your father aside from some golf clubs; stated that you were not referring to the Ozito twin cutter in question in the statutory declaration; denied that the Ozito cutter belonged to your father; stated that perhaps you had made a mistake; and refused to look at the statutory declaration when shown;

(b)   re trafficking in methylamphetamine: you admitted that you have a bit of methamphetamine in your coffee on most days but do not smoke it – although you conceded that sometimes you might have a puff with an ice pipe; stated that it gets you motivated to do gardening; said that you are not sure how much you consume every week or month; and made no comment when asked whether the methylamphetamine located at Property 2 belonged to you;

(c)   re trafficking in cannabis: you admitted that cannabis had been located and that you had pointed out some cannabis to the police; stated that the cannabis is for back pain relief, but that you do not have a prescription from your doctor; admitted that you smoke your cannabis in a joint; and stated that the joints which were located had been made by you two days earlier;

(d)   re negligently dealing in proceeds of crime – being the cash: you admitted that you told police about the cash in the washing basket; and said that you sell a lot of property and when you get paid you put the money away. You further stated that you do not keep a record of the cash or of the receipts, and you do not have an ABN;

(e)   re negligently dealing in proceeds of crime – being the other assorted items: you said that the electric guitar belonged to a male who had sold it to you, you had had the guitar for about a month, and that you had lent money to this male, and that he hadn’t paid you back; you had bought the knives, or a friend had given them to you; the compound crossbow was probably your dad’s who had died 10 years earlier; and the items were not stolen – you could afford to buy stuff;

(f)    re possession of the ammunition you stated that you used to have a firearms licence but your gun was stolen; you had no reason for possessing the ammunition; and you could not explain why the ammunition was not in the firearms cabinet; and

(g)   re possession of the prohibited weapons you said that you had made a couple of slingshots to practice; you got the sais from a friend, and that they were for decoration; and a friend had made one of the homemade tasers for you for protection.

17You were remanded into custody after your arrest on 30 July 2019 and have remained in custody ever since.

Victim Impact

18I note that there are no victim impact statements in this matter.

Prior Criminal History and Subsequent Sentences

19You do have a relevant, albeit dated, prior criminal history.

20You first came to the attention of the court in 1989 when you were 30 years of age. In November 1989, you were sentenced on a consolidated plea which included multiple drug offences, theft and possession of a firearm without a licence. You received a total effective sentence of 2 months’ imprisonment on some of the drug offences, a 12 month community-based order on the theft charge, and a total of $900 in fines in relation to the other charges. You then breached the community-based order and were sentenced to a 2 month term of imprisonment for that breach in 1990. This was the only term of imprisonment which you had ever served prior to being remanded in July 2018 in the aftermath of the original searches.

21Between 1990 and 1994 you appeared before the court on multiple occasions – predominantly for possession and use of drugs – receiving fines on each occasion. There was then a break in your offending, and you did not appear back  before the court until 1998 when you received a 2 month term of imprisonment, wholly suspended for 12 months, for the offences of possession and cultivation of cannabis.

22You came back before the court again in 2001 for a wilful damage offence; and in 2003 for drink driving. There was then a passage of some fourteen years during which you did not get in to trouble, prior to returning to court in 2017 and 2018 for driving offences for both of which you received community correction orders. Those orders had finished prior to the offending before this court.

23Whilst your prior offences are relevant to a certain degree when considering the sentencing purposes of specific deterrence and community protection, I note that the prior matters most relevant to your current offending all occurred over twenty years ago. The matter of greater concern is that you went on to commit the current offences in circumstances where you had, the previous year, been arrested and spent some time in custody on remand for similar offences, and still had those charges pending.

24

On 14 January 2021, you pleaded guilty to, and were sentenced for, a number of offences arising out of that original search warrant executed at your home on

31 July 2018. I am told that you were convicted and sentenced to 270 days' imprisonment.  In considering the sentence to be imposed on the matters currently before the court, I cannot, and do not intend to, further punish you in respect of the matters for which you were subsequently sentenced. Those offences are however relevant both in respect of an assessment of the weight to be given to specific deterrence and community protection as I have already outlined above, and when considering the application of the totality principle in this case.

25Whilst you have been in custody since your arrest on 30 July 2019, the intervening term of imprisonment means that you only have 542 days (or approximately 18 months) of pre-sentence detention available to you on the current matters. You have, however, spent just over two years and three months in custody in total, with at least 18 months of that time being served in the restrictive prison conditions brought about by the Covid-19 pandemic. Both your counsel, and prosecuting counsel, submitted that totality is a relevant sentencing consideration in this case, and I agree with that submission. In particular you lost the opportunity for the matters to be heard at a time proximate to each other when effect could have been given to a level of concurrency between the various terms of imprisonment imposed in respect of each set of offending. I have taken this into account in your favour when determining an appropriate sentence in this case, by reducing the sentences which might have otherwise been imposed in respect of each of the charges.  

Guilty Plea and Delay

26These matters have a lengthy history – although not through any particular fault of yours.

27

The charges the subject of the second indictment, and the related summary offences, were committed on 30 July 2019, and a filing hearing proceeded on

31 July 2019.  You then had a committal mention on 24 Jan 2020, at which time the matter was listed for a contested committal on 30 April 2020.

28

The charge subject of the first indictment was committed earlier, on 6 March 2019, and came to the attention of the police between April and July 2019. However when you were charged, the first mention of the matter was not listed until

28 January 2020. The charge was then uplifted to the indictable stream with a filing hearing being conducted on 29 January 2020. A contested committal for that matter was then also listed for 30 April 2020. 

29Unfortunately your committals could not be heard in April 2020 due to the restrictions brought about by the Covid-19 pandemic, and so they were adjourned on a couple of occasions before ultimately being heard on 7 December 2020. At the committal – which was run as a joint committal across both matters – your counsel cross-examined four witnesses on your behalf being the owner of the Ozito cutter, the tenant at Property 2, the police officer who witnessed the statutory declaration, and the informant.  At the conclusion of the committal you were committed to stand trial on all indictable charges which included more serious charges than those being heard today.

30The matter then proceeded to a Directions Hearing in the County Court before being listed before me for Case Conference on 10 May 2021. The main offences in contention between the parties at that case conference were the offences of trafficking in a commercial quantity of methylamphetamine and attempting to pervert the course of justice. A resolution was ultimately reached post the Case Conference with the main charges in contention being withdrawn, and with you indicating a willingness to plead guilty to the charges which are now before the court. You were arraigned on those charges on 4 June 2021 and entered pleas of guilty.

31Given the chronology of the proceedings, I accept that despite the considerable delay between charge and resolution and despite a contested committal having been run, your plea of guilty should be considered to be a plea entered at an early opportunity. The fact that witnesses were cross-examined at committal does not, in my view, detract from the weight of your plea in this case given that at the time of the committal you were facing considerably more serious charges than those which are now proceeding.

32Your plea has saved the time and cost of a trial being conducted and saved the witnesses from having to give evidence again. The value of the plea is also enhanced in the current circumstances of the pandemic which is causing unprecedented disruption to the smooth running of the justice system. Accordingly I am of the view that your plea both facilitates the course of justice and is of significant utilitarian benefit. I also accept that your guilty plea reflects an acceptance by you of responsibility for your offending conduct.

33Overall, taking each of the above matters into account, I accept that you are entitled to a substantial discount on your sentence by reason of your plea of guilty.

34I have also taken into account in your favour the delay between the offences being committed and those matters finally coming to a resolution. Delay may be relevant to sentencing in two ways – firstly in relation to the unfairness occasioned to an offender of having a charge hanging over their head and causing them anxiety for an extended period of time, and secondly in respect of any progress towards rehabilitation which occurs during that delay. In your case, the second aspect has limited application given you have been in custody for the entirety of that period and have little to be able to demonstrate rehabilitation save for your enforced abstinence from substances and your engagement in a number of courses. However, I do accept that there has been considerable delay in this matter – perhaps most notably illustrated through the delay between the filing hearing on the charges the subject of the second indictment on 31 July 2019 and the contested committal hearing on 7 December 2020.  The fact that you, to the point of entering your pleas, were exercising your right to contest the charges does not impact on an assessment of the extent to which the delay is mitigatory. I accept that a period of two and a half years to progress from charge to plea is a considerable time to have charges hanging over your head, and I take that into account in your favour.

Personal Circumstances

35You are now 61 years of age. You were born and raised in Geelong.

36You worked as a structural engineer for many years at Avalon Airport where you were responsible for certification of aeroplanes.

37In 1999, when you were 40 years of age, you were undertaking certification work on the fuel tank of a jet aeroplane when you fell. You did not have a safety harness at the time and fell a considerable distance to the tarmac below. As a result you suffered a spinal injury which rendered you permanently incapacitated, and you were found to be incapable of returning to work. As a result you received a substantial Workers’ Compensation payout.

38As already noted in the summary of offending, you used that payout to purchase Property 1 which was situated only a few doors down from your parent’s home. Following the death of your father, and then your mother, you inherited the parental home which you then leased out to various people.

39

You have not been able to work in paid employment since your fall from the aeroplane due to the effect of your injuries. You have also suffered a gradual deterioration in other aspects of your physical health and in particular in relation to your heart and lungs. These problems have persisted whilst you have been in custody and I am told that you have been required to have regular visits to

St Vincent’s Hospital during your time in custody.

40

I was provided with a letter from Associate Professor Andrew MacIsaac from

St Vincent’s Hospital dated 16 April 2020 which was tendered as Exhibit 2 on the plea. In that letter, Associate Professor MacIsaac confirms that you have a history of heart issues and respiratory issues having been hospitalised for both at Geelong Hospital in 2017. He noted that investigations of your condition undertaken by the cardiology clinic at St Vincent’s Hospital in January, February and April 2020 had revealed that you have rheumatic heart disease with impairment of your cardiac function and disease affecting your mitral valve. At the time of writing the report you were on a considerable amount of medication for both your heart and your lungs, and further investigation was still to be undertaken into the severity of your lung disease, and the need for an operation to replace your mitral valve.

41I am told that you have subsequently been informed that you do need that operation, and are hopeful of being able to have that procedure performed soon upon your release from custody. You also addressed the court directly during your plea and advised me that your current condition is such that you are short of breath when you speak and move, and struggle to walk more than 15 metres at any one time, especially if it is windy.  You told me that it is your intention to make contact with your GP immediately upon release from custody to obtain appropriate referrals to specialists for treatment and surgery.

42It is apparent on the material before the court that your physical condition has made your time in custody to date more burdensome than if you were in good health and I take that into account in sentencing you today.

Drug Issues

43It is also apparent on the material before the court – including your prior criminal history, the comments you made in your record of interview, and matters raised by your counsel in written and oral submissions – that you have longstanding issues with drug abuse.

44I am told that you are a long-term user of cannabis, and that you commenced using amphetamines in the 1990’s when you were undertaking night shift work. More recently, prior to your remand in custody, you became heavily dependent upon the use of methamphetamine, to manage both your pain and your life, to the extent that at the time of your arrest you were using methamphetamine every day.

45You have now spent over two years in custody and it is submitted on your behalf that you have not used whilst you have been in custody. Further, you advised the Court during the plea that you have undertaken a number of courses whilst in custody in relation to drug use and abuse.  I have today been provided with correspondence from Caraniche Drug and Alcohol Services which confirms that you have completed four courses totalling 30 hours with their service relating to drug and alcohol education.  This is a positive step towards rehabilitation and shows that you have some insight into factors which contribute to your offending.

46However, given your extensive history of drug issues and your prior and current criminal record in respect of drug offences, in my view your prospects of rehabilitation can be considered, at best, to be reasonable. They are – to a large degree – dependent upon your ability to remain abstinent from drug use. To that end, in my view it will be important on your release from custody for you to continue to access treatment for drug issues (and in particular relapse prevention treatment) in the community to both enhance your rehabilitation prospects and also to enhance the protection of the community. In my view it is also important to reflect this in any sentence I impose, to give appropriate weight to the sentencing purposes of rehabilitation and community protection.

Impact of Covid-19 on burden of imprisonment

47Given the date of your initial arrest and remand, you have been in custody throughout the entire period of the COVID-19 pandemic in Victoria. I take into account that your time in custody to date has been more burdensome than it might otherwise have been due to the restrictions which have been imposed and which are still currently in place. As a result of these restrictions you have experienced lockdowns; your access to rehabilitative opportunities have been more limited than might otherwise have been the case; you have had reduced access to friends; and have been, and most likely will continue to be in the near future, restricted from having face to face contact with them.

48I also accept that you are subject to heightened stress and anxiety by reason of your incarceration and resultant lack of control of the measures to reduce your risk of contracting the virus.

49I take this added burden of imprisonment into account in sentencing you.

Gravity of the offending

50Turning now to the gravity of the offences, whilst pointing to factors specific to each offence, Mr Pearson made an overall submission that the seriousness of your offending and your moral culpability for your offending are at the low end of the range regarding matters which come before this court. Ms Fallar, by contrast, submitted that your offending was serious and the nature and gravity of the charges warrant significant weight being given to the sentencing purposes of denunciation, community protection, and deterrence – both general and specific.

51Whilst I accept that the offences which bring you before the court are not the most serious offences which fall to be heard by this Court, by and large, they are still serious offences. They were all committed whilst you were on bail, and in circumstances where you had a large number of similar charges outstanding. There is nothing in the plea material before the court which reduces your moral culpability for your offending. Accordingly specific deterrence is a prominent sentencing purpose in this case.

52Dealing with each of the charges more specifically, the making of a false declaration is always a serious matter. When making a declaration you are swearing that the information that you provide within it is true and, more importantly, you are holding out that the information within it can be relied upon by other persons in making a decision or determination on a particular matter. In this case, your swearing of the false statutory declaration was intentional and involved a level of pre-planning. It was made more serious by the fact that you then attempted to use that declaration to encourage the police to return property to you which was not yours. If the declaration had been accepted, the flow on effect was likely to have resulted in you not only receiving property which belonged to another person, but also potentially having a criminal charge against you withdrawn. This is conduct which must be denounced, and both yourself and others in the community need to be deterred from acting in this way.

53Turning to the drug offences, each of the two offences have been charged as a single date trafficking charge based on the amount of each type of drug which was located. The methylamphetamine in particular was of a substantial quantity, approximately a third of commercial quantity in mixed weight and over commercial quantity in respect of purity. The cannabis located was less substantial but still a significant amount. In both cases, whilst you have not been charged on the basis of running a trafficking business, it was fairly conceded by your counsel that despite you being a heavy user of both methamphetamine and cannabis, the amount which was in your possession was not only for personal use. Mr Pearson admitted, based on your instructions, that you had, over a period of time, engaged in the process of trading and selling both cannabis and methylamphetamine as part of your wider trading activities. Ms Fallar submitted that your conduct was also made more serious through the combination of the drugs with the other items in your home, including the various weapons which were present.

54It is serious conduct to traffick drugs at any level. It is well known that drugs generally have a disastrous impact on many in our community – and you yourself are now coming to the realisation that your own use of drugs has been detrimental to your health and lifestyle. By selling and trading drugs to others you are exposing them to similar risks to their health and safety. It is accordingly important that the sentence I impose reflects the need for denunciation and deterrence of this conduct, and further provides for protection of the community.

55Turning to the property and money located at your home, as discussed on the plea, you have been charged and fall to be sentenced on the basis of negligence, rather than recklessness or knowledge, as to those items being proceeds of crime. This makes the conduct less serious, but I must still take into account in sentencing you the large amount of property and cash covered by charges 3 and 4.

56Finally in relation to your possession of imitation firearms and weapons, irrespective of how and why those items came into your possession, it is concerning that you had so many of them at your properties. You do have a prior conviction for possession of a firearm without a licence and you should be well aware that you cannot possess such items for any reason.

Sentencing Submissions

57Finally I turn to the sentencing submissions made by each counsel.

58Ms Fallar submitted, on behalf of the prosecution, that an immediate custodial sentence would be appropriate in this case given the need for weight to be given to the sentencing purposes of specific deterrence, general deterrence, denunciation and protection of the community. She further submitted that given the timing and nature of the offences the subject of the second indictment, it would be open for the court to impose an aggregate sentence which covers all four offences on the second indictment. Ms Fallar made a similar submission in respect of the three related summary offences which can attract a term of imprisonment, further noting that related summary charge 6 could, in the circumstances, be dealt with by way of either a fine or a dismissal. So far as the offence the subject of the first indictment is concerned, Ms Fallar conceded that it would be open for substantial concurrency to be ordered between this and the other offences. Finally Ms Fallar submitted that any sentence imposed should contain a therapeutic component which addresses your drug abuse issues to increase your prospects of long term rehabilitation and community protection.

59Mr Pearson conceded, on your behalf, that as a matter of practicality it is accepted that you will be sentenced to a term of imprisonment but that any such term should not exceed the period which you have already spent on remand in respect of this matter. He did not take issue with Ms Fallar’s submissions in respect of aggregate sentences and cumulation. However he submitted that if I was to impose a therapeutic element into the sentencing disposition in addition to imprisonment, that this should be implemented through an adjourned undertaking rather than a community correction order. He submitted that a community correction order, even if only of a therapeutic nature, still carries with it a significant punitive element which is not warranted in this case given the total period of time which you have spent in custody.

60I agree with both counsel that in respect of the second indictment, it is open to the court to impose an aggregate sentence of imprisonment given that the offences all arise out of your actions in buying, selling and trading in illicit property and drugs, and all relate to items found during the search of your properties on 30 July 2019. I similarly agree that while there needs to be some level of cumulation as between the charge on the first indictment and the charges on the second indictment, there should be a substantial degree of concurrency between the charges. Finally I also accept Ms Fallar’s submission that in order to properly address the sentencing purposes of rehabilitation and community protection in this case, the sentence needs to contain a therapeutic element.

Sentence

61Having carefully considered the various sentencing considerations raised by this case, the submissions of each of the parties, and the applicable sentencing principles including the application of the totality principle and current sentencing practice, I am of the view that the combination of a total effective term of imprisonment which is roughly commensurate with the time which you have already served, combined with an adjourned undertaking which requires you to remain of good behaviour and engage in rehabilitative treatment as directed by your doctor, can adequately meet all of the sentencing purposes in this case.

62Mr Verdesoto, you will be sentenced as follows.

63On the first indictment, on charge 1, which is the make a false statutory declaration charge, you are convicted and sentenced to 6 months’ imprisonment.

64On the second indictment, on charges 1, 2, 3 and 4, you are convicted and sentenced to an aggregate term of imprisonment of 16 months’ imprisonment. This is the base sentence.

65I direct that 2 months of the term of imprisonment imposed on charge 1 on the first indictment, be served cumulatively upon the aggregate term of imprisonment imposed upon charges 1, 2, 3 and 4 on the second indictment.

66On related summary charge 7, possession of an imitation firearm as a non-prohibited person, you are convicted and sentenced to a term of imprisonment of 21 days to be served concurrently with both the sentence imposed on charge 1 on the first indictment, and the aggregate term of imprisonment imposed on charges 1, 2, 3 and 4 on the second indictment.

67Therefore the total effective term of imprisonment is 18 months.

68The period of 542 days of pre-sentence detention, not including today’s date, 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 records of the court.

69Mr Verdesoto, in practical terms what that means is that you are somewhere within a week of finishing your sentence.  It will depend on how, in terms of the term of imprisonment - it will depend on how the authorities calculate months as compared to days and also whether you get any management days to reduce your sentence as well.  At most you should only have to serve another week, at least you might be released today.  That is going to be a matter for how the prison calculates the numbers, do you understand that?

70OFFENDER:  I do, Your Honour.

71HER HONOUR:  In relation to the other charges that I have not sentenced you on yet.  On related summary charge 6 which is the possessing ammunition without a licence, you are convicted and discharged so there is no further penalty in relation to that charge.

72OFFENDER:  Thank you, Your Honour.

73HER HONOUR:  On related summary charges 12 and 16, you are convicted and sentenced to an adjourned undertaking for a period of 9 months with the following special conditions:

(i)that you be of good behaviour for the period of the undertaking;

(ii)that within 10 working days of being released from custody, you attend upon your General Practitioner for the purposes of discussing any ongoing assessment and treatment requirements to address your drug abuse issues.  So when you go and see your GP you not only need to talk about your heart and your lungs, you need to talk about any treatment that you need to do for your drug relapse prevention for example or drug abuse, all right?

(iii)thereafter, that you follow any lawful directions of your General Practitioner, or any health professional to whom you are referred, in respect of assessment and treatment for your drug abuse issues; so if your GP tells you ‘you need to go and do some counselling’, then you need to go and do it, all right? 

(iv)Then, that on or before 1 June 2022, you forward to the court proof, in writing, of your engagement with your General Practitioner and/or other health practitioner in respect of assessment and treatment for drug abuse issues. 

74So what that means is, I want a letter from your GP, or if he refers you on to someone else, from whomever he refers you to indicating that you have spoken to them about these things and that you have done anything that they have suggested that you do.  All right?

75OFFENDER:  Okay.

76HER HONOUR:  Do you understand the conditions on this undertaking?

77OFFENDER:  I think so, Your Honour.

78HER HONOUR:  When you give the undertaking, which is effectively a promise, and you break the promise either by committing a further offence during that nine months which starts today or by failing to comply with any of the conditions, so that is; failing to go to your GP within the 10 days and discuss what you need to do, failing to follow any directions of your GP or failing to provide proof that you have done that to the court. If you break any of those conditions you can be brought back before the court and face breach proceedings. One of the things which can happen on that breach proceeding is that the undertaking can be cancelled and you can be re-sentenced on those two offences. You may also receive a penalty for the breach itself. Do you understand this?

79OFFENDER:  Okay, can I have that in writing, please, Your Honour, so I remember it?

80HER HONOUR:  You will definitely get it in writing and you will be asked to sign it at the prison before you are released as well, all right?  So you will probably have to sign that sometime today.

81OFFENDER:  That's okay.

82HER HONOUR:  With me having told you those conditions and with me having told you what can happen if you breach the undertaking, do you agree to give that undertaking, to give that promise?

83OFFENDER:  Yes, Your Honour, the first thing I want to do is see my doctor.

84HER HONOUR:  Yes, good, good.

85OFFENDER:  You know, with my back injury, Your Honour, I've been on heavy medication like Panadeine Forte and heavier than that but it's got too much codeine, codeine in it and it makes me too constipated.  That's why I've been, you know, have enjoyed having marijuana.  Maybe he can give me medical marijuana, Your Honour.

86HER HONOUR:  They're all things to discuss and that's part of discussing with him, being assessed and treated in relation to the drug issues.  So if medical marijuana is available to you that would be something that you could definitely discuss with your doctor which is part of what I'm asking you to do.

87You need to come up with some way of dealing with your issues that does not involve you resorting to drugs and so that's what I want you to talk to your doctor about, how you might go about doing that, all right?

88OFFENDER:  Okay Your Honour, no worries.

89HER HONOUR:  So there is a couple more things I have to do before I finish.

Section 6AAA Declaration

90Pursuant to s6AAA of the Sentencing Act 1991 (Vic), I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment and been convicted of them, you would have received a total effective sentence of 3 years with a non-parole period of 2 years 1 month. So you have received quite a big discount on your sentence by reason of your pleas of guilty.

91OFFENDER:  Yes, Your Honour.

Ancillary Orders

92HER HONOUR: I also make some other orders. On the first indictment - and these are probably not going to make much sense to you, Mr Verdesoto, this is more for the lawyers - pursuant to s78(1) of the Confiscation Act 1997 (Vic), I make a disposal order for the two items identified in the schedule to the draft order provided by the prosecution.

93On the second indictment, pursuant to s33(1) of the Confiscation Act 1997 (Vic), I make a forfeiture order for the fifteen items identified in the schedule to the draft order provided by the prosecution.

94On the second indictment and related summary charges, pursuant to s78(1) of the Confiscation Act 1997 (Vic), I make a disposal order for the nineteen items identified in the schedule to the amended draft order provided by the prosecution.

95On related summary charge 6, pursuant to s151 of the Firearms Act 1996 (Vic), I make a forfeiture order for the box of Winchester ammunition.

Other Matters

96That covers all of the ancillary orders I take it, Ms Fallar?

97MS FALLAR:  That's correct, Your Honour.

98HER HONOUR:  I will come back to you in just a moment, Mr Verdesoto.  I just want to check with counsel.  Is there anything else that either of you wish to raise at this stage in respect of either the sentence or reasons for sentence?

99MS FALLAR:  From the prosecution, Your Honour, in relation to summary charges 12 and 16, aggregate nine months undertaking.  Is that undertaking with or without conviction?

100HER HONOUR:  Yes, with conviction.

101MS FALLAR:  And finally, Your Honour has indicated that there are no charges outstanding.  Strictly there is the Informant Monohan matter, that remains outstanding.

102HER HONOUR:  Yes, all right.  That does not make any difference to my - - -

103MS FALLAR:  No.

104HER HONOUR:  It was more meant in terms of this whole scenario of offending.  It does not actually make any difference to my ultimate sentence but what I will do just for a matter of clarity is that I will just remove that sentence from the reasons so that there can be no confusion about what it meant.

105MS FALLAR:  Thank you, as the court pleases.

106HER HONOUR:  All right.  Just a moment, Mr Verdesoto, I will come back to you in just a moment.  Yes, Mr Pearson?

107MR PEARSON:  Nothing from my part, Your Honour.  No, I understand the sentence, I have made a note of it.  I will speak to Mr Verdesoto regarding in particular the adjourned undertaking a little bit later.

108HER HONOUR:  And we will give you a little bit of time now if you want to have a quick chat to him now as well once I get off the screen.

109MR PEARSON:  Sure.

110HER HONOUR:  Mr Verdesoto, was there a question that you had?

111OFFENDER:  Yeah, Your Honour, I just wanted to explain the reasons for me having the ammunition was because when the police officers came to take my guns away because I was a gun - I was allowed to have guns, Your Honour, they didn't take my ammunition.

112HER HONOUR:  Yes, all right.

113OFFENDER:  And I just thought that's weird that they take my gun and they don't take my ammunition and the so called imitation weapons were plastic gel guns, Your Honour.

114HER HONOUR:  Yes, I understand that.  I understand that.

115OFFENDER:  You know, they were toys.

116HER HONOUR:  I understand that but as I say, it still needs to be sentenced in the circumstances.

117OFFENDER:  Yes, yes.

118HER HONOUR:  Mr Verdesoto, what I am going to do is once I get off the screen I will give you an opportunity to have a quick chat to Mr Pearson and he will just quickly run through with you so that you understand the sentence but hopefully this will see you being released sometime in the next week, that's my intention.

119Mr Pearson, obviously if anything arises that means that that does not occur, please feel free to come back to my court and have a mention listed but that is my intention.

120MR PEARSON:  Yes, I follow Your Honour, yes, thank you.

121HER HONOUR:  Thank you.  Thanks, Ms Ventura.

122COUNSEL:  Thank you, Your Honour.

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