Director of Public Prosecutions v Zaffina

[2018] VCC 1766

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02498

DIRECTOR OF PUBLIC PROSECUTIONS

v

PASQUALINO ZAFFINA

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JUDGE:	HER HONOUR JUDGE M. SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2018
DATE OF SENTENCE:	27 April 2018
CASE MAY BE CITED AS:	DPP v Zaffina
MEDIUM NEUTRAL CITATION:	[2018] VCC 1766

REASONS FOR SENTENCE
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Subject:         Criminal Law
Catchwords:  Trafficking in cannabis
Legislation Cited:

Cases Cited:DPP v Searl [2017] VCC 732, Ramadan v The Queen; Boca v The Queen [2011] VSCA 50, Justin Dowdell v The Queen [2012] VSCA 125, DPP v Daniel Grant Gardam [2016] VCC 191, Mili Bala v The Queen [2010] VSCA 78

Sentence:TES: 2 years 3 months with a minimum of 12 months before becoming eligible for parole. Disqualified from driving for 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J Henderson	Office of Public Prosecutions
For the Accused	Ms L Torres	Papa Hughes Lawyers

HER HONOUR:

1Pasqualino Zaffina, you have pleaded guilty to one charge of trafficking in cannabis, an offence with a maximum sentence of 15 years' imprisonment. 
You also agreed to this court hearing a summary offence of driving while disqualified, and pleaded guilty to that offence.  That has a maximum penalty of two years' imprisonment or 240 penalty units.  In addition, I may suspend or cancel your authorisation to drive and disqualify you again from driving.

2I sentence you on the basis of the prosecution opening, which is an agreed summary.  In brief, on 22 December 2016, you were seen by police driving a car which you then parked and began leaving the area.  Told to stop, you attempted to run, but after a short pursuit you were arrested.  You gave your correct details in identifying yourself, and the police officers found you had been disqualified from driving about six weeks earlier.  You were released and told to expect a summons.

3Although you said you would return with someone else to drive the car, you did not, and on police inspecting the car, drug and trafficking paraphernalia was found inside as well as more than 26 kilograms of cannabis.  You clearly knew that your offending would be discovered once you had given your details to police, and once the car was searched, and you knew the inevitable consequence.

4In February 2017, you were arrested on other matters and interviewed for those as well as the events of December.  You exercised your right to silence.  Again, you were released pending summons, until arrested again in August 2017 for burglaries.

5Although the charges you are to be sentenced on today were laid then, your time in custody did not count towards today's sentence until 3 October 2017, when your bail was formally revoked on these matters.

6While the quantity of cannabis found in the car that you were driving is over the commercial quantity, you are not charged with the more serious offence of trafficking in a commercial quantity.  Importantly for you, there is clear agreement between the prosecution and defence as to the basis on which you are to be sentenced.  That is as follows:

"The prosecution does not dispute that the cannabis located in the vehicle was not owned by Mr Zaffina.  Mr Zaffina's role was to transport the cannabis on behalf of another.  Mr Zaffina was to have no involvement in the further distribution, movement or sale of the cannabis, and Mr Zaffina did not have knowledge of the exact quantity of cannabis, although it was apparent from the smell of the cannabis that it was a relatively significant amount."

7Your counsel further outlined the circumstances of your offending.  You are described as having a serious addiction to cannabis and other drugs, on-and-off for many years, and as I will come to, have significant prior convictions for trafficking in illicit substances.

8In December 2016 at the time of the offending, you were once again in the grip of that addiction and your drug dealer apparently asked you to transport this commercial quantity of cannabis in exchange for free cannabis.  The cannabis and other items, while in your possession when you were driving the car in which they were found, did not belong to you.  Enquiries by police established that the car had been rented about a month earlier by a person using the name of "Ong", and you told police that you had been accompanied by a female passenger in the car who was able to leave the scene.  Neither Ong nor this female have been located.

9Your counsel submitted that I should sentence you on the basis that this was a one-off trafficking episode as a courier, transporting the cannabis to a location, and that was to be the extent of your involvement.  It was also put that while acknowledging your relevant criminal record, this trafficking was less serious than the trafficking you had engaged in previously.

10I will come back to my findings shortly, but it is appropriate at this stage to detail your personal and criminal history that I take into account in deciding the appropriate sentence.

11You are now 47 years old and were 46 at the time of the offending.  You have an older sister and grew up in a happy, close-knit family of Italian origin with all of you living in the same house, including during the adult years of you and your sister.  The exception is, of course, when you were in custody or away from home during periods of offending.

12You apparently got in with the wrong crowd early, and from your mid-teenage years, you were smoking cannabis.  Later, you added smoking heroin and inhaling methylamphetamine (ice) to your lifestyle.  The wrong crowd you were mixing with included Andrew Veniamin.  Initially, you had a close friendship, but after a falling-out, you, your family and your home were targeted in a series of shootings and a bombing, ultimately causing your family to move house. 
The culmination of all this was you being shot in the legs by Veniamin when you were aged 21.

13Now, years later, you have mostly physically recovered from your injuries and also from your psychological injuries which led you to have a diagnosis of post-traumatic stress disorder in the aftermath of the shooting.  This was, no doubt, exacerbated by the necessity for you to give evidence at the murder trial of one Gatto for the later shooting of Veniamin.

14Between the ages of 20 and 36 years, 1990 to 2006, you gathered a number of convictions and appearances:  four for cultivation of cannabis, which it seems to have been accepted was for your own use; seven for either use or possession of cannabis; and some firearm and dishonesty offences.

15During that period in 2004, while using cannabis and heroin, you were involved in the business of trafficking methylamphetamine and cannabis, together with other people.  After a considerable delay from time of the offences being committed, you were sentenced for this offending by another judge of this court in February 2009.

16In that sentence, Her Honour Judge Cotterell took into account that delay, and that in the period since the offending, you had made substantial efforts to rehabilitate yourself, and that you had justified apprehension as to your safety in prison.  You were sentenced to a total effective sentence of 24 months' imprisonment, wholly suspended.  Twelve months was the sentence on the charge relating to trafficking cannabis in the approximate amount, as I read the sentencing remarks, of about 10 pounds of cannabis and four cannabis seedlings.

17Your counsel told me that after that sentence, the relationship you were in broke down and you left your good job, returned to drug use, and within a month of the sentence handed down by Her Honour, also returned to trafficking in methylamphetamine.

18You came back before Her Honour for that charge in September 2012, as well as for breaching the suspended sentence by that offending.  While expressing the hope that you would once again rehabilitate yourself, Her Honour was bound to restore the suspended sentence of 24 months.  Having regard to her finding that you played a lesser role in the trafficking than the co-accused, while taking into account the need for general and specific deterrence,
Her Honour sentenced you to a total effective sentence of 25 months' imprisonment with a minimum of 12 months.

19You were paroled after 12 months, but it was cancelled and reclaimed at least twice, with the sentence ultimately expiring in January 2015.  For the year-and-a-half following that, in the community, you seem to have managed well. 
You were apparently drug free, had casual employment, and were living with your family.

20Tragically, in the middle of 2016, your father received a sudden diagnosis of lung cancer with a poor prognosis.  You were close to your father, as with all your family, but you managed your distress at this news by returning to drug use.  Later that year in November 2016, you were dealt with in the Magistrates' Court for drug possession (heroin and methylamphetamine) as well as numerous dishonesty offences arising from your need to fund your drug habit, and were sentenced to time served and a community correction order.  You were disqualified from driving for 12 months.

21On your release, your father's health was deteriorating and you resumed your drug use, your dishonest offending, and your criminal associations. 
You committed the offences for which I am sentencing you within about six weeks, as I said earlier.  It is an aggravating factor of your offending that you were under the community correction order at the time.

22As I outlined earlier, you were interviewed in February 2017 but released. 
Your father passed away in April 2017.  You continued using cannabis and heroin.  You were finally remanded on other charges in August and on the trafficking charge in October.  You will return to the Magistrates' Court in May 2018 for the outstanding charges, as well as the breach of the community correction order.

23I am satisfied that you committed the offences I am sentencing you for while back in the grip of your drug use, and that, unusually for a person with prior trafficking convictions, the trafficking charge involves a lesser role than you have played previously, being that of courier rather than salesman.

24However, it is still a serious offence, the seriousness of which you were and are well aware, and it involved, as did your previous offences of trafficking, the movement of illicit drugs from source towards the ultimate consumer. 
As I mentioned to counsel this morning, the fact of your criminal history, especially the trafficking, was no doubt known to your drug dealer who otherwise might have hesitated to trust a person with such a large quantity of cannabis.

25In summary, the features that make your offending serious are the quantity involved, although I accept that you did not know exactly how much; your relevant criminal history; and that you were on both a community correction order and under an order disqualifying you from driving.

26Although there were no direct victims of your offending, it is well understood by the court that the illegal drug trade impacts individual victims and society as a whole, and this is also understood by the community when their lives are touched by the scourge of drugs, whether as victims or as loved ones of offenders.

27There are, however, some matters that I take into account in your favour. 
In summary, these are: 

·    first, your early plea of guilty, which I accept as an expression of remorse and acceptance of responsibility, and which has saved the community the time and cost of a trial;

·    Next, that you are drug-free while in prison, as shown by the test results; 

·    Next, that you are pursuing rehabilitation by undertaking a drug course while in prison, and planning for possible employment on your release by completing a traffic controller course; and

·    Lastly, you continue to have the support and love of your mother and sister, who were once again in court to show that support.

28I think your prospects of rehabilitation, however, are guarded.  On the one hand, you are now 47 years old and know you will spend the rest of your life in and out of prison if you do not stop the cycle of drug-taking, offending and prison.  On the other hand, while I have been calling your drug use an "addiction", the fact that you can be drug-free for considerable periods, including in the community, may make it less of an addiction and more of a habit of choice.

29As Her Honour Judge Cotterell has said to you, only you can work that out and decide to become drug-free for the rest of your life.  You have demonstrated that you can be drug free, but will you continue to show that?  It is up to you.

30It is conceded on your behalf that a sentence of imprisonment is the only appropriate disposition, but submitted by your counsel that a straight sentence could be imposed.  The prosecutor submitted that the sentence must reflect general and specific deterrence, and acknowledge your prior convictions, and by way of example of an inappropriate sentence, referred to a sentence of imprisonment combined with a community correction order.

31I asked counsel to consider some cases arising from a sentence of Searl[1], as well as Searl itself, which is referred to in the Judicial College of Victoria sentencing manual.  I have also had the opportunity to consider those cases since this morning.  This afternoon, counsel have both effectively submitted that Searl is itself, really, the only case which may be of some assistance, but that it is only one case and cannot be considered to be current sentencing practice.

[1]DPP v Searl [2017] VCC 732

32Nevertheless, I consider that there is some utility in having regard to the sentences referred to in the case of Searl, and also, the cases referred to in the tables in the Court of Appeal sentences that were referred to in Searl.

33In Searl itself, the offender had a limited criminal history with no drug charges, either possession or trafficking.  Like you, he was charged as a courier, and he undertook that to erase a drug debt.  But unlike you, he was involved to a greater degree in that he rented the car himself.  There was an equivalent amount of cannabis involved - 22 kilograms, in his case, and 26 kilograms in yours.  Searl had positive rehabilitation prospects, and he had no charges pending.  Ultimately, he received a sentence of two-and-a-half years' imprisonment with a minimum of 18 months.

34The case of Ramadan[2] involved 5 kilograms of trafficking cannabis as part of a multiple drug trafficking business.  That offender received two years for that.  He had pleaded guilty early, and there was considerable delay.  He had good rehabilitation prospects, and the need for specific deterrence was considered to be reduced.

[2]Ramadan v The Queen; Boca V The Queen [2011] VSCA 50

35In the case of Dowdell[3], he had no prior convictions and was a carer for his mother.  It was considered to be a most unusual case because the cultivation and trafficking of cannabis was for the pain relief of terminally ill people, including his father.  Those two people were also charged with the offending, but died before the matter came to court.

[3]Justin Dowdell v The Queen [2012] VSCA 125

36That offender was considered to have excellent rehabilitation prospects, had pleaded guilty early, had suffered financial loss as a result of the charge, and again, there had been considerable delay.  He was sentenced to 18 months' imprisonment on the relevant equivalent charge.

37The case of Gardam[4] involved about four pounds of cannabis, which was bought in Melbourne and transported to Mallacoota by the offender to be sold.  He had an early plea of guilty and had rehabilitated himself by getting off heroin.  He had prior convictions, including having served gaol time in the past.  He received an aggregate sentence of time served of 255 days, which is roughly equivalent to eight-and-a-half months.

[4]DPP v Daniel Grant Gardam [2016] VCC 191

38The final sentence that I will refer to is that of Bala[5].  That can be distinguished on the basis that it was a plea of not guilty and so resulted in a sentence received after trial without the benefit of the plea of guilty.  However, the cannabis trafficked there was about 1.27 kilograms. He did have a prior conviction for trafficking.  He had positive rehabilitation prospects, and his need for specific deterrence was emphasised because of that prior conviction, although it was considered to be more serious than the matter that was then before the court.

[5]Mili Bala v The Queen [2010] VSCA 78

39The Court of Appeal considered the current sentencing practice for trafficking in cannabis over the period 2006 to 2009, which is clearly not current to this time.  But it is interesting to note the range of sentences referred to in the table attached to that sentence.

40So I consider that there are some aspects that are of assistance in considering the history of sentencing for trafficking in cannabis, but ultimately, as always, each case has to be considered, and yours must be considered, on the matters relevant to that particular case.

41In my view, the sentence I impose today must have regard to the maximum sentence of 15 years' imprisonment, reflect the community's denunciation of trafficking, and have general deterrence as its most important sentencing objective by which others are to be deterred from acting as couriers.  Further, it is in my view an equally important sentencing objective that this sentence deters you from committing this crime when you have done so on two occasions in the past. 

42You have had significant stressors in your life, which I take into account. 
But nothing excuses your criminal behaviour as a repeat drug trafficker, even in a lesser role.

43Yes.  Stand up please, Mr Zaffina.

44You are convicted and sentenced as follows.

45On Charge 1 of trafficking cannabis, two years, three months' imprisonment.

46On the summary of charge of driving whilst disqualified, one month's imprisonment.

47The sentence on the summary charge is to be served concurrently with the charge of trafficking.

48That makes a total effective sentence of two years, three months' imprisonment.

49I direct that you serve 12 months before becoming eligible for parole.

50I declare that you have served 207 days in pre-sentence detention, including today.  These will be deduced administratively from your sentence.

51If you had not pleaded guilty but had been found guilty of Charge 1 after a trial, not on a charge of commercial quantity, the sentence I would have imposed is four years, six months' imprisonment with a minimum of two years, three months.

52I make the orders for forfeiture and disposal.

53Any license held by you to drive a motor vehicle is cancelled. 
You are disqualified from driving for 18 months from today.

54Are there any other orders required?

55COUNSEL:  No, Your Honour. 

56MS TORRES:  If Your Honour pleases.

57HER HONOUR:  Yes, thank you.  Mr Zaffina may be removed.  I thank counsel once again for your assistance, and I will adjourn sine die.  Thank you. 

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