Director of Public Prosecutions v Zaffina, Pasquale
[2012] VCC 1512
•28 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-01073
CR-06-01596
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PASQUALE ZAFFINA |
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JUDGE: | Her Honour Judge Cotterell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 September 2012 | |
DATE OF SENTENCE: | 28 September 2012 | |
CASE MAY BE CITED AS: | DPP v Zaffina, Pasquale | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1512 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Ms L. Torres | Revill & Papa Lawyers |
HER HONOUR:
1 Pasquale Zaffina, you have pleaded guilty before me to one charge of trafficking in a drug of dependence, being methylamphetamine. The maximum penalty for that offence is 15 years imprisonment. You have also pleaded guilty to one charge of possession of cannabis and the maximum penalty in the particular circumstances is 30 penalty units or 12 months imprisonment.
2 The facts of the matter were opened by the prosecution and a summary of the Crown opening was tendered as Exhibit A on the plea. The facts are as follows; you were charged as a result of an investigation by police in the usual police operation which was codenamed Pepsin. You were, it is acknowledged, a minor player in a larger undertaking involving your two co-accused Mr Krstevski and Mr Fernandez.
3
You were identified in relation to two transactions of 3.5 grams each of methylamphetamine, but you are charged with trafficking over that period. Your charge is between the dates of 16 March 2009 and 13 April 2009. On
19 May, you were arrested and found to be in possession of 0.9 of a gram of cannabis and that is the subject of Charge 2.
4 Your matter resolved, as I understand it, on the first day of a trial that was listed for 26 September 2011. A plea date was set and you failed to appear on 26 November. You were subsequently arrested in relation to some other minor matters and have actually been in custody in relation to this matter since 15 June 2012.
5 On 6 February 2009, you were sentenced by this court to a term of imprisonment of 24 months, which was wholly suspended for two and a half years and that related to charges of trafficking and possession of drugs, although with much greater quantities.
6 The matter that brings you before me today breaches that order and, according to the legislation, I intend to order that that sentence of 24 months be restored.
7 Your personal circumstances have changed since the last sentence. Your relationship has ended and you, having suffered greatly over that, moved back to live with your parents and you have suffered with depression. That resulted in you giving up the very promising employment that you had and you again began using methylamphetamine. That led to you purchasing from one of your co-accused and then on-selling in order to fund your own habit.
8 When I suspended that sentence in 2009 your future looked very promising. Unfortunately, you have suffered a serious setback and it is to be hoped that you will now re-engage with rehabilitation. You need to realise that you are only 41 years old and you have a life before you. You are still a young man.
9 A report authored by psychologist Warren Simmons was tendered as Exhibit 1 on the plea. This gave me your family background, which I set out in my previous sentence, and reiterated the matters in relation to findings and diagnoses in relation to your long-term post-traumatic stress disorder which has followed on from you being shot at the age of 21. I take all of those matters into account and just reiterate that in the end, you are the only person who can do anything about the difficulties in which you currently find yourself. There is no reason that I can see or that is put before me which indicates that you cannot reengage in some sort of counselling and in employment.
10 I take all those matters into account and I also take into account the principles of parity in relation to your two co-accused. That altogether has made this quite a difficult sentencing exercise because I have to restore 24 months and then look at what your co-accused received in relation to much heavier offending and I need to balance all those things up.
11 I also need to take into account general deterrence. That is, others in the community must be deterred from engaging in the sort of activity that you have engaged in, that is in trafficking in drugs of dependence.
12 I also need to take into account specific deterrence. That is, that you yourself be deterred from offending in the future. It is very important in this case because you have failed to avail yourself of the opportunity that was given to you and fell back almost immediately into a similar form of offending, albeit on a much lower scale.
13 I am also required to denounce your behaviour on behalf of the community and I do so. It is not acceptable in the community that you either take, or more particularly, engage in trafficking in drugs which lead to terrible consequences for the people who use them and you may look indeed at your own plight.
14 I further take into account your role in the offending. I note that you played a far lesser role and that your trafficking is of a very limited amount and over a limited period. As I said, I take into account the principle of totality and also the restoration of the two years, which is absolutely unavoidable.
15 I also take into consideration that this is your first time actually serving a sentence within the system and further, that the offending for which you were initially sentenced in 2009 actually occurred in 2004. If one looks at the overall scale of your offending in relation to drugs, you have had long periods where you have been able to not indulge in that behaviour.
16 So those are the matters that I have taken into account and they are all contained in the documents which are exhibited to this plea and also I would exhibit my earlier sentencing remarks which cover your personal circumstances in far more detail. I am now going to ask you to stand.
17 On Charge 1, you are convicted and sentenced to six months imprisonment. On Charge 2, you are convicted and fined $300. In relation to the breach of the suspended sentence, I find the breach proved and order that the term of 24 months imprisonment imposed on 6 February 2009 be restored. I then order that one month of the sentence imposed in relation to Charge 1 is to be served cumulatively on the sentence that has just been restored. That, in my estimation, is a total effective sentence of 25 months imprisonment. I order that you serve a minimum of 12 months before you become eligible for parole.
18 I further declare that the 105 days pre-sentence detention be deemed time served and that, that fact be entered into the records of the court. That means of course that you will serve approximately nine months in all.
19 Further, but for your plea of guilty, in relation to the trafficking, I declare pursuant to s.6AAA of the Sentencing Act that I would have sentenced you to nine months for the trafficking. I do not regard it as being relevant to the other matters, the other sentence that I have had to take into account. So I do not think it is appropriate that I try to work out what I would have given you, whether the plea of guilty would have made very much difference given the nature of your offending, your role and the re-imposition of the 24 months.
20 I am further required to make orders pursuant to s.464 of the Crimes Act. That is an order, that you undergo a forensic procedure for the taking of a scraping from your mouth. I am going to make that order because I am satisfied that in all the circumstances, the making of the order is justified, due to your prior convictions, the fact that the order is not opposed, and the granting of the order is in the public interest. I just have to inform you that at the time of the request for you to undergo that procedure, if you were to resist, an authorised member of the police force may use reasonable force to enable the procedure to be conducted. I have just crossed out on the form, so that it is clear, that it is a mouth scraping, not a blood sample.
21 I further make orders by consent for a disposal order, relating to the items specified in the certificate of the botanist which are attached to the order and the Sony Ericsson mobile phone, which is identified in the order.
22 I can only say to you, Mr Zaffina, to bear in mind that if you are very depressed and cannot operate in the community, get some treatment. I am hoping that the long period that you will be subject to the parole board will enable you to actually avail yourself of some services.
23 I think that is all. Is there anything arising out of that?
24 MR PICKERING: Yes, that covers everything. Thank you, Your Honour.
25 HER HONOUR: The s.6AAA, it is a bit unusual but I do not know whether you want to say anything about that but it just seems to me it is so artificial in these circumstances.
26 MR PICKERING: It is completely artificial, Your Honour, but it can only apply to Charge 1.
27 HER HONOUR: Yes, so you agree with me then?
28 MR PICKERING: Yes, Your Honour.
29 HER HONOUR: All right. So, Mr Zaffina, that is it. So I think you about nine months to serve and I hope you make use of that time as well. Thank you.
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