Director of Public Prosecutions v Violatzi

[2019] VCC 1245

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01318

DIRECTOR OF PUBLIC PROSECUTIONS

v

LAMBROSE VIOLATZI

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 August 2019
CASE MAY BE CITED AS:	DPP v Violatzi
MEDIUM NEUTRAL CITATION:	[2019] VCC 1245

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Warren
For the Accused	Mr N. J. Goodfellow

HER HONOUR: 

1Lambrose Violatzi, you have pleaded guilty to two charges of trafficking in a drug of dependence.  The maximum penalty for each of those charges is 15 years' imprisonment. 

2On 26 June 2017, your son John was granted bail in the Supreme Court of Victoria.  That application was supported by the evidence of Anthony Dieni who was the coordinator of and a counsellor for St Paul's Rehabilitation Prevention Service.  He gave an undertaking to the court to report to the informant any bail breaches that came to his attention.  A condition of that bail was that a surety of $10,000 be provided.  I understand that was provided by you. 

3On 26 June 2017, Mr Dieni told you he was no longer able to obtain the ‘more expensive features’ for your son because a person named Stephen Sioulas was in custody.  Sioulas had previously provided Mr Dieni with drugs.  Dieni asked you, were you able to source cocaine and you said you would ‘see what you could do’.  Thereafter, there were a number of conversations which are subject of telephone intercepts where you discuss with him obtaining drugs. 

4On 3 July, you told him that you had got ‘both parts’ - this was a reference to methylamphetamine and to cocaine.  You arranged to meet so you could supply Mr Dieni with those substances. 

5On 14 August, Mr Dieni was contacted by the police informant for the matter in relation to your son, John.  He was asked whether your son had breached any conditions of his bail.  Mr Dieni confirmed to the police that your son had breached bail and agreed to send a report to the informant setting out that bail compliance history.

6Following that conversation, Mr Dieni contacted you and requested drugs from you in exchange for delaying the submission of his report to the police, stating that he would ensure that you had the surety you provided returned to you prior to Mr Dieni submitting his report. Dieni told you that the police informant could not breach your son without the report written by him. 

7Mr Dieni told you that he wanted you to supply cocaine and methylamphetamine in exchange, in effect, for the delay of supply of that report.  He referred to needing it for a person called - who is known to be Priya Fidler and for Mr Dieni's grandson.  You agreed to meet him again and to supply when he spoke to you on that same afternoon. 

8In all the prosecution say, you agreed to supply 2gm each of methylamphetamine and cocaine to Mr Dieni.  Those exchanges were to take place at ‘Soprano's’ restaurant at Southbank.

9Once arrested, you exercised your right not to be interviewed. 

10Turning to your personal circumstances, you are currently 55 years of age.  You were 53 at the time of this offending.  You were born in Greece and immigrated to Australia with your mother and sister with whom you now reside.  Your father died when you were a young boy in Greece. 

11In Australia, you initially lived with your uncle in Richmond.  He was physically and verbally abusive and as a result your family moved to housing commission properties in Richmond.  You attended school up until Year 9 at Richmond Technical School but did not complete your high school education.  You have not participated in any further schooling or obtained any further qualifications. 

12On leaving school, you initially obtained work at a service station before taking driving and labouring jobs.   You do have a reasonable employment history, mostly in driving, which has been punctuated by terms of imprisonment.  At one point, you purchased a six-tonne truck to start your own business as a courier in Melbourne but you lost both the truck and your home during the recession in the early 1990s. 

13You married around 33 years ago and your only son is John to whom I have referred.  Your wife left you and John when he was 14 months old.  You raised him on your own and you are clearly close to him.

14You have a history of substance abuse and you were addicted to heroin in your 30s.  That history is reflected in your prior criminal record.  You stopped using heroin when you were imprisoned in 2010.  You remained drug free until 2017 when you commenced using methamphetamine around the time your son was imprisoned.  It was at this time as I have described that you came in contact with Mr Dieni. 

15In terms of your health, you have been diagnosed with liver cancer around two years ago and you underwent surgery at Moorabbin Hospital to remove your liver.  You remain under the care of Monash Health and require regular medical reviews.  I have a note in essence confirming that engagement.

16You have a relevant prior criminal history including numerous prior matters for drug use and possession, and of note, four charges of trafficking where you received a four-month term of imprisonment in 1999.  In addition, you have engaged in subsequent offending, that is, subsequent to this matter although it is dissimilar offending.  But it is noteworthy that you were sentenced on 2 April of this year to four months' imprisonment on a consolidation of matters in the Dandenong Magistrates' Court. 

17Those matters were apparently committed between July 2018 and February 2019.  You were released on 15 June of this year after completing that sentence.  You are currently not the subject of any further orders and you have no matters outstanding. 

18Trafficking in any drug of dependence is a serious matter.  The substances you agreed to supply are seriously deleterious.  They present a danger within our community.  In these courts, we see the result of those dangers on a daily basis.  Anyone who participates in the movement of those substances through the community should expect serious punishment.  Sentences should generally and specifically deter you and others from such  behaviour.  They should ensure protection of the community from that behaviour.  Those factors are an important part of my consideration and synthesis of the sentencing task. 

19There are a number of critical factors which in my view are important in determining the appropriate disposition in all the circumstances of your case.  A number of these have been conceded by the prosecution.  

20First, you and Mr Dieni had no prior history together.  He was not known to you.  You met him in the context of him holding himself out as a person who could assist in obtaining bail for your son and who could then keep at bay police action to breach that bail.  The prosecution accept that he preyed on and exploited you.  That is a significant and appropriate concession.  It was that unusual set of circumstances which saw him approaching you, persistently so, to obtain drugs.  He did so on the basis that he knew apparently you were a person with a prior criminal record and would have ability to obtain drugs. 

21The telephone intercept material apparently bears out his persistent approaches to you.  It bears out your growing reluctance to be involved with him or to supply any drugs.  It bears out the fact that those conversations around drugs were embedded in conversations relating to your son.

22The prosecution case is one of agreement to supply.  That places your offending at a lower level than a person who actually supplies.  I note, however, in a statement made by you, you admit actual supply on one occasion of cocaine and methylamphetamine.  You have sworn the truth of that statement.  The prosecution accept therefore that your statement goes further than they were able to prove.  I accept your counsel's submission that this demonstrates frankness in your statement and your willingness to admit your full involvement. 

23That statement is part of your preparedness to give evidence against Mr Dieni.  You indicated your preparedness to make a statement against him at a very early stage.  It was apparently not sought out by the prosecution but was volunteered by you. 

24Any person who will assist the authorities by providing information or indicating a willingness to give evidence must receive the benefit of that offer of assistance.  As a matter of policy, courts must recognise such cooperation and encourage it by allowing for a significant discount in sentence. 

25Your offer, I accept, was not made as a last minute attempt to reduce sentence but at an early stage.  But for that offer and the undertaking you have given today, the sentence I would have imposed would have been more severe. 

26You will receive the benefit of your willingness to give evidence.  I anticipate that may involve giving evidence and being cross-examined at a preliminary hearing and then at trial.  That will not be an easy thing to do.

27As a person previously incarcerated and involved in criminal behaviour, you no doubt understand the risks to yourself in taking that course.  There is no positive suggestion that your safety will be threatened but I accept as common sense that a person who has cooperated with prosecuting authorities may be subject to unwanted negative attention.

28The prosecution accept there is value in your cooperation.  Yours will be direct evidence of what is otherwise inferential evidence against Mr Dieni.  In my view, there is value in the contents of your statement.  I accept that your offer to cooperate is a reflection of your remorse of involving yourself in this offending. 

29I also accept that your plea is a reflection of your remorse.  You receive the benefit of that plea.  The prosecution accept that it is an early plea, given in effect just after the committal on the basis of facts which now found these charges before me. I note the committal was run alongside a number of co-offenders and was largely directed to other charges of attempting to pervert the course of justice.

30I accept, as your counsel submitted, that given the unique set of circumstances of this offending, they are unlikely to be replicated by you.  The prosecution accept you were motivated by a desire to assist your son and not by personal financial benefit.  Your relationship with your son and your sense of paternal obligation was exploited by Mr Dieni.  Your participation in the trafficking activity was limited to the occasions I have described.  It was not ongoing or sophisticated.

31The matter resolved immediately following the withdrawal of charges against you in relation to attempting to pervert the course of justice.  Those were withdrawn on 26 March 2019.  If not for those charges, it is submitted and I accept that the matter may have resolved before the committal hearing and could have been dealt with in the Magistrates' Court on the charges which are now before me.  There is also substantial utilitarian value in your plea of guilty.

32With regard to your prospects of rehabilitation, they must be guarded given your long history.  However, I do note you have housing and support of your family.  You managed to remain drug free during your lengthy term of imprisonment which commenced in 2010.  On release from that term in March 2016, you were able to successfully complete parole.  You slipped into drug use, apparently somewhat related to your son's use of methamphetamine.  That is concerning. As you know, the grip of addiction to that drug is a strong one. 

33I am told that you are now drug free.  The further offending which I have described involved one charge of failing an oral fluid test which related to drugs. 

34It is concerning that you committed further offences at all after the lengthy term of imprisonment you served.  Be in no doubt, you will have to be on your guard against drug use.  Understand in particular that any trafficking will likely result in terms of imprisonment. 

35I take into account in a global sense the term of four months you served this year.  Had this matter been dealt with at the same time, the likely outcome would have been perhaps a slight increase to that term.  But given the peculiar circumstances of this offending and of your cooperation, that is by no means a certainty.

36I have given consideration to parity and the helpful table I received from the prosecution.  As with any case, there are limitations.  I have very little detail about the prior criminal record or personal history of those persons who are really only co-offenders by virtue of the lynchpin of Mr Dieni.  I do note Jack Grae received a community corrections order and gave an undertaking to cooperate with the authorities.  However, I also note he pleaded guilty to a charge of attempting to pervert the course of justice.  Others received community corrections orders in relation to more numbers of charges. 

37Mr Khoury is perhaps the closest.  He received a 12‑month community corrections order for one trafficking charge in relation to cocaine of a similar small amount of two grams.  But in his case, there was apparently no undertaking to cooperate.

38I do not believe a CCO is warranted here.  You are 55.  It is a matter for you to determine your own rehabilitation.  There is nothing about the offending or your circumstances other than your history which would cause me to impose therapeutic conditions on a CCO given you are currently drug free.  It would therefore in my view be a work order only.  In my view, it is better for you and for the community that you return to paid work and contribute to the community in that way. 

39In all the circumstances, my view is that a fine better punishes you.  It best causes the sting of punishment for this offending.  If you could stand please, Mr Violatzi.

40In relation to the two charges, I propose to impose an aggregate fine.  I convict you and the fine I impose is one of $1000 and I will give you time to pay that fine. 

41Would you like to take instructions, Mr Goodfellow, in relation to the time needed?

42MR GOODFELLOW:  Yes please, Your Honour.  I seek a stay of three months, Your Honour.

43HER HONOUR:  Yes, I will grant that stay. 

44I note the provisions of s.5(2AB) of the Sentencing Act 1991.  As I have indicated, but for your undertaking to cooperate with the authorities, the sentence I would have imposed would have been a more severe one and I will cause that fact to be noted in the records. 

45COUNSEL:  As Your Honour pleases.

46HER HONOUR:  Have a seat then, Mr Violatzi.  Any matters counsel?

47COUNSEL:  No, Your Honour.  

48HER HONOUR:  All right.  Thanks very much for your assistance in the matter.  All right.  Thanks.  2 o'clock.

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