Director of Public Prosecutions v Zammit
[2022] VCC 1631
•27 September 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-21-02626
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN ZAMMIT |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 & 27 September 2022 | |
DATE OF SENTENCE: | 27 September 2022 | |
CASE MAY BE CITED AS: | DPP v Zammit | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1631 | |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Traffick drug of dependence - traffick drug of dependence commercial quantity – possess drug of dependence - unlicensed driving - refuse to provide oral fluid sample
Legislation Cited:
Cases Cited:Fernando v The Queen [2017] VSCA 2008
Director of Public Prosecutions v Paul Condo [2019] VSCA 181
Gregory (a pseudonym) v The Queen (2017) 268 ACR 1
Director of Public Prosecutions v Christopher Poulos [2018] VCC 590
Director of Public Prosecutions v Taylor Stewart [2021] VCC 1484
Director of Public Prosecutions v Maxwell [2013] VSCA 50Sentence:1 year and 8 months' imprisonment, 12 months non-parole
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Mr D. Porceddu Mr N. Zvekic | Office of Public Prosecutions |
| For the Accused | Mr G. Lascaris | Daniel Taylor Lawyers |
HIS HONOUR:
1 Nathan Zammit, you have pleaded guilty to an indictment in which Charge 1 alleges trafficking in a drug of dependence, namely, methylamphetamine, for which the maximum term of imprisonment is 15 years. Charge 2 alleges trafficking in a drug of dependence in a quantity not less than a commercial quantity of 1,4-Butanediol, for which the maximum penalty is imprisonment for 25 years. And you have pleaded guilty to Charge 3 of trafficking in a drug of dependence, namely, cannabis, for which the maximum penalty is imprisonment for 15 years.
2 You have also pleaded guilty to Charge 4 of possessing a drug of dependence and to Charge 5 of possessing a drug of dependence. Charge 4 involved the drug methylamphetamine and Charge 5 the drug 1,4-Butanediol.
3 You also pleaded guilty to two related summary offences, one of unlicensed driving, for which the maximum penalty is imprisonment for six months or a fine of 60 penalty units, and one of refusing to provide an oral fluid sample, for which the maximum penalty is a fine of 12 penalty units and disqualification of your licence to drive for a period of no less than four years.
4 You have also admitted a prior criminal history which contains a number of offences of dishonesty, offences of failing an oral fluid test and various driving offences, which shows that you not only have a poor criminal record but that you also have a poor driving record. It is, however, noteworthy that you have no prior convictions for any offences involving the possession of or trafficking in drugs of dependence.
5 The offence the subject of Charge 2 is a category 2 offence under the Sentencing Act 1991 and requires me to impose a term of imprisonment other than a term of imprisonment which is in addition to a community correction order unless certain exceptional circumstances apply. It is not suggested that any of those circumstances apply in your case, therefore the only option I have in relation to Charge 2 is to impose a term of imprisonment other than a term of imprisonment in addition to a CCO.
6 The prosecution has tendered a summary of opening dated 14 September 2022 for the purposes of the plea, that is Exhibit A, together with an addendum to the summary of prosecution opening dated 15 September 2022, which is Exhibit B on the plea hearing. The prosecution opening, Exhibit A, was not read out in full; rather, it was summarised by the prosecution, and sets out the circumstances which led to these charges being brought against you.
7 In short summary, the matter arose from events on 3 December 2020 when at about 8 pm you were pulled over by highway patrol officers after you left the carpark in your motor vehicle at the Gippsland shopping complex in Sale. The police officers who pulled you over suspected that you were under the influence of drugs of dependence and required you to participate in a roadside test. You refused to provide a sample of your oral fluid. That gives rise to the second of the two related summary offences. You also admitted that you did not have a current driver's licence.
8 You were found to be in possession of a small plastic bag containing a white crystalline substance which was found to be methylamphetamine. That is the subject of Charge 4 on the indictment. You were also in possession of a small smoking pipe and your mobile phone. The contents of your mobile phone showed text messaging over a period of time consistent with the offences of trafficking in various drugs of dependence set out in the particulars of Charges 1 to 3 on the indictment. It is upon the basis of that information that the charges have been laid.
9 Police then executed a search warrant at your home address. During the search they found in a backpack, which contained personal documents in your name, a vial of liquid which when analysed was found to be 1,4-Butanediol. That is the subject of Charge 4 on the indictment to which you have pleaded guilty.
10 The trafficking can be summarised as follows: so far as Charge 1 is concerned, the trafficking took place over a period of a little under 10 months between the dates set out in the charge, which began in November 2019 and ended in September 2020. The total amount of methylamphetamine which is said to have been trafficked during that period is 6.05 grams.
11 As far as Charge 2 is concerned, the prosecution alleges that you trafficked in not less than 2.5 litres of 1,4-Butanediol over a period of less than a month in April and May of 2020. That represents a quantity 1.25 times in excess of the threshold for a commercial quantity, which is 2 litres.
12 The amount of cannabis said to have been trafficked on the single date of 9 September 2020, is not known. But there is reference in the telephone messaging to '1' which may be interpreted as 1 gram perhaps. But there is no certainty as to the amount of cannabis trafficked on that one day. The messaging also revealed that during the periods during which you were trafficking you received proceeds from your trafficking totalling $4,950.
13 This was a negotiated plea after a case management hearing and an informal sentencing indication from me. However, I proceed to sentence on the basis of the agreement between the prosecution and defence as to the nature and extent of the trafficking during the period set out in the indictment and with regard to the fact that Charge 2 is a category 2 offence.
14 Turning to matters personal to you, you are aged 41 years and you were aged 38 to 39 at the time of the offending. There is no doubt, as your counsel points out, that you had a difficult start to life. You were born in Melbourne. Your mother was aged 14 at the time of your birth and your father was aged 12. As you understand it your parents were forced, given their age, to put you up for adoption. Your biological parents had a daughter two years later whom they kept and you have occasional contact with your biological sister. You have no other siblings. You met your biological mother for the first time when you were aged 22 years. You were adopted and grew up in the Ferntree Gully area. Your adopted parents separated when you were at a young age and your adopted mother remarried when you were about 12 years of age. You have occasional contact with her.
15 You commenced part-time work as a butcher at 13 years of age, and as soon as you reached the minimum age allowing you to leave school you commenced an apprenticeship in butchery. You completed that apprenticeship in four years and have worked in the meat processing butchery industry consistently since then. At about 27 years of age you completed a Certificate III in Refrigeration and Mechanical Engineering, and you did that to broaden your skillset. Immediately prior to your most recent remand in custody you worked full-time as a butcher and you were consistently working between 60 and 65 hours a week.
16 Your intentions in the future are to start up a mobile butchery business when you are free to do so and when your licence is restored to you. You have just enrolled in a business management course which requires 300 hours of study. Some of that can be done on remand and some during your sentence. Some will have to be done after you have completed your sentence.
17 You have a 19-year-old son and a 9-year-old son from two previous relationships. Your most recent marriage broke down in about 2014. You are currently in a relationship with a lady who is in court today to support you. She is aware of these matters, and your intention is to live with her upon completion of your sentence.
18 As far as your drug-taking history is concerned, I am told that you were first introduced to drugs when you were aged about 22 years of age and that you developed a methylamphetamine habit, and that over the period since then you have had on-off issues with substance abuse interspersed with periods of abstinence. The longest period of abstinence occurred between your ages of 24 and 34. Upon the breakdown of your relationship at that latter age you resumed consumption of illicit substances.
19 You also had a period of abstinence between 2017 and mid-2019, but relapsed as a result of work stresses and pressures occasioned by long working hours. You resorted to methylamphetamine and GBH. At the time of the offending for which I have to sentence you today, you were using methylamphetamine on a daily basis. During the period whilst you were on bail earlier this year you again experienced a highly stressful and pressured work environment and again relapsed into using methylamphetamine. Whilst in custody you have been prescribed Avanza to treat depression.
20 Your counsel frankly put forward the proposition that your prospects of rehabilitation are tied strongly to your ability to remain abstinent from illicit substances and that, given your long history of substance abuse, the prospects of your rehabilitation need to be described as guarded, depending very much on your capacity to break the long-term substance abuse habits.
21
You do not have any prior convictions for trafficking in drugs of dependence or drug offences. But again your counsel frankly accepts that many of your offences, particularly those of dishonesty, were linked to your continuing drug use and the need for funding to provide you with the drugs you desired. Unfortunately this is not an uncommon story, and many people's lives are blighted and sometimes ruined by drug addiction, methylamphetamine being a very significant feature of many of these stories that come before this court. I hardly need to tell you, Mr Zammit, that you have a bleak future unless you are able to overcome your addiction to and misuse of illicit substances.
22 These offences are serious offences. All offences involving trafficking in drugs of dependence are serious offences. Clearly, trafficking in a drug of dependence exceeding the minimum commercial quantity is a particularly serious offence which is marked by the maximum term of imprisonment for that offence of 25 years. Trafficking simpliciter is also marked by a significant sentence, being 15 years' imprisonment maximum sentence. That signifies that it is also regarded as a serious offence.
23 However, during the course of the case management hearing I ventured to describe your level of trafficking as “rats and mice”. It seems to be accepted on both sides that this is low-end trafficking and that I need to sentence you accordingly. As I have already indicated, a term of imprisonment is required and I indicated during the case management hearing that it seemed to me you would have to do some further time. Your counsel puts on your behalf that a period on parole, if you qualify for that, would be a useful assistance to you in tackling the issues that you will have to tackle if you are to beat your drug addiction.
24 I suspect that your partner will help you in all of that and, even though the sentence that I intend to impose will not enable your immediate release, there will be a period of parole - if you qualify for it - in the not too distant future, allowing you to focus on how you are going to manage that and how you are going to manage your future.
25 I am required to punish you for the offending, denounce your offending to an adequate level, to impose a sentence which takes into account the need for public protection because of the harms that trafficking in drugs of dependence can cause in the community and to pay proper regard to the sentencing principles of both general deterrence and deterring you. Because, although you may not have prior convictions for drug offences, you have certainly been a long‑term user.
26 I also need to consider your rehabilitation, and whilst your prospects seem to be guarded I do not see them as hopeless. Perhaps the most significant feature about your history, Mr Zammit, is that you are a worker and it seems that, whilst you have had a long-term drug history, you have been a functioning drug user. I applaud you for your work ethic and I think that it has the capacity, along with the assistance of your partner, to help you through this difficult period and give you some prospects of a happy life in the future.
27 You will have to realise that if you do offend again that the sentences will only get larger, and that there is a pretty strong incentive for you to ensure that you complete rehabilitation from this long‑term drug habit.
28 It is necessary for me to pay heed to current sentencing practice. I was referred during the plea hearing to the decision of the Court of Appeal in Fernando v The Queen [2017] VSCA 2008, to the Director of Public Prosecutions v Paul Condo [2019] VSCA 181, and there is reference in those cases to the Court of Appeal decision in Gregory (a pseudonym) v The Queen (2017) 268 ACR 1.
29 I have also been referred to sentencing reasons of judges of this court in relation to offending of a broadly similar kind: the decision of His Honour Judge Misso in the Director of Public Prosecutions v Christopher Poulos [2018] VCC 590 and to the decision of Her Honour Judge Hawkins in the Director of Public Prosecutions v Taylor Stewart [2021] VCC 1484. That latter sentencing order was made during the pandemic. The decision of His Honour Judge Misso in 2018 is clearly before the pandemic, but both of those decisions have been helpful to me in endeavouring to reach a just sentence in your case and to ensure that the sentence is in line with what I perceive to be current sentencing practice.
30 I note, as I have indicated already today, that in the decision of His Honour Judge Misso he refers specifically to the Court of Appeal decision in the Director of Public Prosecutions v Maxwell [2013] VSCA 50, during which there is some useful discussion about the proposition that, whilst ordinarily the principle measure of seriousness is drawn from the quantities of the illicit drugs involved, when it comes to drugs such as 1,4‑Butanediol it is recognised that it is also relevant to consider the differential between trafficking in that drug as compared with other drugs, for example, heroin or methylamphetamine, in that the financial rewards are significantly smaller than for trafficking in drugs such as methylamphetamine and heroin. As I have already indicated, the prosecution case is that you received from your trafficking activities a total of $4,950.
31 With all those factors in mind, I am now ready to impose sentence upon you. On Charge 1 of trafficking in methylamphetamine you are convicted and sentenced to imprisonment for 14 months. On Charge 2 of trafficking in a commercial quantity of 1,4-Butanediol you are convicted and sentenced to imprisonment for 16 months. On Charge 3 of trafficking in cannabis on one day you are convicted and sentenced to imprisonment for four months. On Charge 4 of possessing methylamphetamine you are convicted and sentenced to imprisonment for two months. On Charge 5 of possessing 1,4‑Butanediol you are convicted and sentenced to imprisonment for two months.
32 For the related summary offence of unlicensed driving you are convicted and sentenced to imprisonment for one month. On related summary offence Charge 6 of refusing to provide a sample of oral fluid you are convicted and fined $500 and disqualified from holding or obtaining a driver's licence for a period of four years.
33 I intend to backdate that period of disqualification to the date of your pleas of guilty, which is 23 August 2022.
34 The sentence of 16 months on Charge 2 is the base sentence and I order that four months of the sentence on Charge 1 be served cumulatively upon the sentence of 16 months on Charge 2.
35 Therefore, the total effective sentence is imprisonment for 20 months.
36 I order that you serve 12 months before being eligible for parole.
37 I declare 260 days of pre‑sentence detention as time to be reckoned as served on the sentence that I have imposed.
38 I declare that but for your pleas of guilty I would have sentenced you to imprisonment for 30 months, with a non-parole period of 20 months.
39 I make the orders for forfeiture and disposal in accordance with the drafts which I have been provided.
40 Are there any other matters that I need to deal with?
41 MR LASCARIS: No, Your Honour.
42 MR ZVEKIC: No, Your Honour.
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