Director of Public Prosecutions v Zampogna
[2024] VCC 60
•7 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00799
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FRANK ZAMPOGNA |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January, 1 February 2024 | |
DATE OF SENTENCE: | 7 February 2024 | |
CASE MAY BE CITED AS: | DPP v Zampogna | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 60 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Trafficking in a drug of dependence – Commit an indictable offence whilst on bail – Relevant criminal history – Manufacturing of drugs – Guarded prospects of rehabilitation – Delay – COVID-19 pandemic.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 ss 71AC(1), 81; Bail Act 1977 s 30B; Telecommunication (Intercept and Access) Act 1979 (Cth); Sentencing Act 1991 ss 6AAA, 18.
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Biba v The Queen [2022] VSCA 168; The Queen v Barci (1994) 76 A Crim R 103; The Queen v Howden [1999] VSCA 130.
Sentence: Imprisonment for a period of 2 years and 9 months with a non parole period of 18 months.
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APPEARANCES: | Counsel | Solicitors | |
| For the DPP | Mr G Mohammad |
| |
| For the Accused | Mr J Moore | May Lawyers |
HIS HONOUR:
Introduction
1Frank Zampogna, you have pleaded guilty to one charge of trafficking in a drug of dependence contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs, Poisons and Controlled Substances’), which carries a maximum penalty of 15 years imprisonment.
2You have also pleaded guilty to the related summary offence of committing an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977 (‘Bail Act’), which carries a maximum penalty of 3 months imprisonment.
3You have also admitted your Criminal Record.
Circumstances of the offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5You were born in Adelaide, South Australia and moved to Victoria in 2019. You are an Australian citizen.
6At the time of this offending, you had no identifiable source of income.
7During the course of the investigation you were identified attempting to manufacture methylamphetamine and MDMA at two separate clandestine laboratory sites. The addresses for the clandestine laboratories were:
(a) 54 Maria Drive, Langwarrin, Victoria; and
(b) 3105 Geelong Bacchus-Marsh Road, Balliang East, Victoria.
8On Tuesday 12 April 2022 at approximately 1:30 a.m., you attended Peninsula Private Hospital Emergency Department after suffering burns to your body.
9Treating nurses at the hospital made an assessment of your injuries and determined that you obtained second degree burns to your hands and first degree burns to your right shin. Nurses provided initial treatment to the burns and informed you that you should attend Frankston Hospital Emergency Department within 24 hours for further treatment of your injuries.
10Whilst treating you, nurses removed the clothing that had melted to your skin, which resulted in them locating a small amount of methylamphetamine. Nurses then contacted police.
11Frankston Uniform members attended the hospital and arrested you for possession of methylamphetamine. Police members then conducted a search of your grey 2010 Subaru WRX sedan grey motor vehicle with South Australian registration S334CBX, which was parked in the carpark of the hospital.
12During the search of your vehicle, police located the following:
(a) a snap lock bag on the front passenger seat containing a white powder substance. A presumptive test was conducted and the substance tested positive as pseudoephedrine; and
(b) two snap lock bags concealed inside the fuse box of the vehicle. A presumptive test was conducted and one substance tested positive as pseudoephedrine and the other substance was labelled as inconclusive.
13You were transported to Frankston Police Station where a record of interview was conducted.
14An analysis of your mobile phone by police revealed the following:
(a) a number of photographs depicting clandestine laboratories in two different locations.
(b) videos depicting what investigators allege to be the attempted manufacture of methylamphetamine with your face in the videos, identifying you to be responsible for the attempted manufacture;
(c) audio of you providing commentary on processes and chemicals in relation to the manufacture of methylamphetamine; and
(d) a Google search of ‘Maria Drive Langwarrin’ on 11 April 2022.
15You were subsequently charged with possession of a drug of dependence and possession of precursor chemicals.
16At approximately 12:30 p.m., you were released from police custody on bail and investigators observed a taxi return you to your motor vehicle which was still parked at Peninsula Private Hospital.
17You departed the hospital in your motor vehicle at approximately 5:00 p.m. and investigators observed you attending outside 1 Maria Court, Langwarrin and sitting in your motor vehicle for a further hour before leaving the area.
18Investigators analysed the video and photographs contained within your mobile phone and identified an address located at 54 Maria Drive, Langwarrin (‘Langwarrin property’). This address was identified as having the same structure compared with the images depicted in the videos and photographs contained in your mobile phone.
19During the investigation, investigators identified that you were involved in the attempted manufacture of methylamphetamine.
20On Friday 15 April 2022 an optical surveillance device was placed on the Langwarrin property.
Search of the Langwarrin property
21On Saturday 16 April 2022, at approximately 1:46 p.m., a search warrant pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act was issued at the Melbourne Magistrates’ Court, in respect of the Langwarrin property.
22On Sunday 17 April 2022 at approximately 10:12 a.m., investigators executed the search warrant of the Langwarrin property and located a clandestine laboratory inside the garage of the property.
23The residential premises consisted of a newly renovated interior and garage area. During your attempted drug manufacturing, the chemical fire caused extensive damage to the inside of the premises. This resulted in significant contamination to the property and a substantial timeframe to rehabilitate the address.
24Forensic chemists attended and seized over 221 items for analysis.
25Located during the search and processing of the scene were the following substances which have since been subjected to preliminary analysis:
(a) precursor chemicals involved in the manufacture of methylamphetamine including Iodine, Hypophosphorus Acid and Phosphorus;
(b) 1-Phenyl-2-Propanone;
(c) Pseudoephedrine; and
(d) 565 kilograms of chemical waste material.
Investigation
26On Friday 22 July 2022, investigators commenced monitoring your telecommunication service pursuant to a warrant obtained under the Telecommunication (Intercept and Access) Act 1979 (Cth).
27Between Friday 22 July 2022 and Thursday 17 September 2022, a total of 101 telecommunication phone calls, multimedia message service (‘MMS’) and short message service (‘SMS’) messages were intercepted and deemed to be of evidentiary nature.
28Paragraphs 28 to 81 of the summary of prosecution opening detail the contents of the intercepted telephone calls, MMS and SMS messages. These intercepts produced correspondence in which you and others discuss the process of manufacturing drugs, the division of work and payment for the drugs manufactured. Photographs of crystal substances and drug manufacturing equipment were also exchanged.
29Notably, on 4 September 2022, you sent an image to Martine Kelly depicting the inside of a shipping container. Your car with South Australian registration S334CBX, which is parked outside of the container, is visible in this image.
Optical surveillance
30On 13 September 2022 at approximately 2:20pm, investigators commenced monitoring the vicinity of 3105 Geelong-Bacchus Marsh Road, Balliang East (‘Balliang East property’).
31Investigators observed your grey Subaru entering and exiting the premises on several occasions.
32On 14 September 2022 at approximately 2:35 a.m., you contacted Holly Mildren stating that you were unable to leave ‘halfway during the packing’. The prosecution allege that the ‘packing’ referred to is you packing up your manufacture process and being unable to leave it half way through a synthesis.
33Between 1:29 p.m. and 4:34 p.m. on the same date, you engaged in a SMS conversation with Natalie Ried in an attempt to source isopropyl alcohol, including sending her an image of the required product.
Arrest and interview
34On 15 September 2022 at approximately 2:30 a.m., you were arrested at the Essendon Motel for possessing a drug of dependence.
35You were conveyed to the Fawkner Police Station for record of interview. During the interview you:
(a) provided your address as 86 Darlingsford Avenue, Melton;
(b) consented to the DNA buccal swab request; and
(c) answered ‘No comment’ to all other questions.
Search of the Balliang East property
36On 17 September 2022, investigators executed a warrant at 3105 Geelong- Bacchus Marsh Road, Balliang East and located a clandestine laboratory inside a shipping container on the property.
37During the search of the premises, which included the caravan, shipping container and residence, the following items were located and seized:
(a) a large number of various sized plastic containers, glassware and bottles containing unknown liquids, solids and powders;
(b) scientific glassware;
(c) scientific equipment, including –
(i)condensers;
(ii)retort stand;
(iii)vacuum pump;
(iv)heated stirrer;
(v)solvents;
(vi)chemicals;
(vii)scales; and
(d) handwritten instructions, checklists and step-by-step manuals on how to manufacture MDMA and the scientific process that needed to be followed.
38On 14 July 2023 the exhibits seized from the Langwarrin and Balliang East properties were examined, and a report was compiled by Forensic Officer Marianne Sleebs. Ms Sleebs concluded that while trace amounts of methylamphetamine were detected in various exhibits across both properties, it was not in a useable form.
39Images of the clandestine laboratory setup located at the Langwarrin and Balliang East properties are depicted in the summary of prosecution opening at paragraphs 93 and 94, respectively.
Nature and gravity of the offending
40Trafficking in a drug of dependence is a serious offence which is reflected in the maximum penalty imposed by Parliament of 15 years imprisonment. In this instance the charge relates to your involvement in the attempted manufacture of methylamphetamine and MDMA between dates relating to two separate clandestine laboratories as detailed above.
41Is clear from the prosecution opening, including the photographs produced, that in each case the setting up of the laboratories would have required a significant degree of planning and preparation before you became involved in the attempted manufacture. It is also clear from the conversations you had with various others during the offending period that you had intimate knowledge of the setup of each laboratory, including the equipment and chemicals you required in the manufacture of drugs.
42What is particularly aggravating about your offending is your conduct following your admission to hospital after which you were charged and bailed. The police soon commenced an investigation initially searching the location where the explosion occurred. What then occurred is that you became involved in the second clandestine laboratory whilst on bail, giving rise to the related summary charge. It is self evident that after having been detected and charged you had no regard to the bail conditions and continued to reoffend in the same manner.
43While you have had a battle with drug use for many years, it is clear in my view that you were involved in the attempted manufacture of drugs with others for a commercial purpose and financial gain. In all the circumstances, in my view, your conduct represents a relatively serious example of this type of trafficking in a drug of dependence.
Personal circumstances
44You are now 42 years old. You are the eldest of four children and were raised in Adelaide. Your mother was 15 years old when you were born. She worked in hospitality and landscape gardening and your father owned and operated an arcade machine business. They separated when you were 16 years old.
45Your father re-partnered and had further children. Your upbringing was strict but conventional, and you do not recall anything traumatic about your childhood or adolescence.
46You attended Adelaide High School but left before finishing Year 12. You finished a higher education certificate equivalent to TAFE in 1999 and 2000. You then completed an associate diploma in aviation with aspirations of becoming a commercial pilot, but you struggled to obtain work due to the Ansett collapse.
47You then commenced a career in IT, working largely as a subcontractor for larger electrical firms. You spent most of your adult life working and living in Adelaide.
48You played Australian rules football throughout your adolescence and into your 20s. When you were 24 years old, you snapped your posterior cruciate ligament and dislocated your left knee while playing local league football. The injury was immensely painful. You were prescribed opiate based painkillers which devolved into a long and complex dependence. You became addicted, using these drugs for many years, but at the age of 40 you were successfully weaned off them through opiate replacement therapy.
49You became involved in illicit drug use in 2016. You were introduced to ice by a colleague while working in Adelaide. Having had a history of addiction to opiates, you then started having problems with ice.
50In 2018, you moved to Kangaroo Island to live with your sister Rosina. You started working with her at her bed and breakfast, located on the island. You met a woman there and started a relationship with her. In late 2020, you relocated to Melbourne with your partner, however the relationship eventually ended and you were unable to return to Adelaide due to lockdown border closures. You are currently single and have no children. You have also not had any meaningful employment since late 2020. Just prior to your arrest, you were living in Melton in private rental accommodation.
51Two character references were tendered on the plea. One is from your brother Damien, with whom you have a close relationship. He speaks affectionately of you and notes that both he and your mother have ‘strongly encouraged’ you to return home to Adelaide, where your supports are. He has indicated that, provided you are prepared to ‘take ownership’ of your behaviours, he, your sister and parents would be willing to support you with food, housing, money and assistance to find employment. The second reference is from your sister Rosina. She confirms that during your term of employment at her bed and breakfast you demonstrated a ‘solid work ethic’ and were a ‘vital contributor’ to her business. She notes you helped her and her husband with caring for the children, including by babysitting and helping to prepare lunchboxes and dinner. She confirms that upon your release, she would be willing to offer you employment again.
52Since your incarceration, your family has been unable to visit as they are all based in South Australia. You have completed a Certificate 2 in commercial cookery and the eight week ATLAS program. You have abstained from drugs and passed all of your random urine screens.
Sentencing considerations
53Mr Moore who appeared on your behalf highlighted a number of matters in mitigation.
54First I take into account your plea of guilty. Your plea of guilty has come at an early stage and represents your acceptance of responsibility. Your plea has also avoided the need for a trial thereby facilitating the course of justice.
55While the backlog of cases as a result of the pandemic has now eased, there are still some residual pandemic-related delays and restrictions for prisoners including the ongoing isolation of prisoners who have symptoms of Covid 19. Thus, a moderate amelioration in sentence is still able to be taken into account.[1]
[1] Worboyes v The Queen [2021] VSCA 169, [39]; Biba v The Queen [2022] VSCA 168, [26].
56It was submitted that the principal of extra curial punishment should be taken into account, firstly in relation to the Langwarrin laboratory where you suffered second-degree burns to your hands and first-degree burns to your shins. While there was no medical evidence of any ongoing complications. it was submitted that you have scarring on your legs as result of the explosion. Secondly, it was submitted that at the Balliang laboratory, the conditions were such that you became quite ill as result of the laboratory not being properly ventilated. Is clear on the authorities that while injuries of this nature are able to be taken into account and I do so to a limited degree, [2] I also note that you chose to be involved in this offending and, despite being burnt in the first laboratory you went on to attempt to manufacture in a second.
[2] The Queen v Barci (1994) 76 A Crim R 103;The Queen v Howden [1999] VSCA 130.
57Turning to your prospects of rehabilitation it is clear that you need to remove yourself from the world in which you continue to be drawn back to. You have recent prior convictions for manufacturing related trafficking in 2018 and 2021 and a further prior for trafficking in 2005. In each case you received a term of imprisonment (noting that the 2005 matter was a suspended sentence). The references of your brother and sister demonstrate that you have strong family support, including the offer of employment, however as acknowledged by your brother, you are an intelligent man with the capacity to take steps to move forward with your life in a positive way, which only you can do. That said, given your determination on this occasion to continue to offend after being released on bail, together with the fact that you have relevant history of similar offending, in my view your prospects of rehabilitation must be approached with some caution.
58Deterrence, both general and specific, are the primary sentencing considerations in this instance. Others must be aware that if they become involved in drug manufacture of this nature they will face stern consequences. Drugs manufactured in clandestine laboratories have the potential to cause enormous harm to individuals, families and the wider community. As such protection of the community must also carry some weight in the sentencing discretion. As to specific deterrence, given your history you must also be deterred from returning again to trafficking in drug by being involved in its manufacture.
Sentence
59Mr Zampogna, would you please stand.
60Frank Zampogna, on Charge 1, trafficking in a drug of dependence, you are convicted and sentenced to 2 years and 9 months imprisonment.
61On related summary Charge 15, commit an indicatable offence whilst on bail, you are convicted and sentenced to 1 month imprisonment to be served concurrently.
62I direct that you serve 18 months before becoming eligible for parole.
63Pursuant to s 18 of the Sentencing Act1991 (Sentencing Act), I declare that 510 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
64Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of imprisonment of 4 years with a non parole period of 2 years and 9 months.
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