DPP v Bugeja
[2017] VCC 782
•15 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-02097
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LENNY JAMES BUGEJA |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 June 2017 | |
DATE OF SENTENCE: | 15 June 2017 | |
CASE MAY BE CITED AS: | DPP v Bugeja | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 782 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCING
Catchwords: Trafficking in a drug of dependence not less than a commercial quantity (1,4-butanediol) – trafficking in a drug of dependence (methylamphetamine and cannabis) – firearms offences and weapons offences – plea of guilty – sentence of imprisonment imposed
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1991; Firearms Act1996; Controlled Weapons Act 1990
Sentence: Community Correction Order – 3 years duration, 300 hours community work and treatment, testing and rehabilitation for drugs and offending behaviour programs.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Ruddle | John Cain, Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr C. Farrington (Plea) Ms A. Hancock (Sentence) | Stephen Andrianakis Lawyers |
HER HONOUR:
1 Lenny James Bugeja, you have pleaded guilty on indictment to three charges:
1. Trafficking in a drug of dependence not less than a commercial quantity between 27 May 2016 and 28 May 2016, the drug of dependence being 1,4‑butanediol;
2. Trafficking in a drug of dependence, namely methylamphetamine and cannabis L, between 20 May 2016 and 20 June 2016;
3. Being a non-prohibited person possessing an unregistered category A or B long arm on 20 June 2016.
2 You have consented to the transfer of related summary charges and pleaded guilty to:
1. Summary Charge 10, possess cartridge ammunition without a licence or permit;
2. Summary Charge 11, possess prohibited weapon without exemption or approval. That related to four samurai swords and a butterfly knife;
3. Summary Charge 12, possess controlled weapon without excuse, which related to two large knives with sheathes.
3 Each of the offences are serious and that is evidenced by the maximum penalties prescribed by Parliament and in respect to Charge 1 that is 25 years' imprisonment; Charge 2, 15 years' imprisonment; Charge 3, two years' imprisonment or 120 penalty units. Summary Charge 10, 40 penalty units; summary Charge 11, two years' imprisonment or 240 penalty units; and summary charge 12, one year imprisonment or 120 penalty units.
4 You also have admitted a prior criminal history. There is only one entry and that was recorded on 20 February 2009 at the Bacchus Marsh Magistrates’ Court in respect to one charge of driving whilst authorisation suspended. The matter was adjourned until 30 June 2009. A conviction was recorded and you were ordered to pay $500 to the Court fund. Having regard to both the age and nature of the charge I do not consider that it is of any particular relevance in respect to this sentencing exercise.
5 I will now proceed to sentence you on the basis of the summary of the prosecution opening that was read at the plea hearing and was exhibited.
6 In brief compass, your offending was detected as a consequence of a police operation code named “Operation Addenine”. The operation was commenced by the Mount Gambier Criminal Investigation Unit in May 2016. They were investigating the trafficking on 1,4-butanediol between Victoria and South Australia and in the process of those investigations, conversations recorded between yourself and one, David William Puckridge, were monitored between the period 3 May to 10 June 2016.
7 There was an agreement reached between you both over text relating to the supply of 12 litres of 1,4-butanediol in exchange for $11,800. Arrangements were made for you to meet at a specified location in Geelong on 27 May 2016 for the purposes of conducting the trade.
8 On 28 May 2016 in the early hours of the morning you were intercepted by police and issued with a speeding infringement notice whilst travelling city bound on the Princes Highway, Williams Landing, thus confirming your presence in the area of Geelong at around the time of the trade.
9 At approximately 6.32 pm that day in South Australia police arrested and searched a vehicle in the possession of Rebecca Lee May, a known associate of Mr Puckridge. They found 12 litres of what police believed to be 1,4‑butanediol, the product delivered and supplied by you. On 3 June 2016 you sent a text message to Mr Puckridge, asking whether he had been successful, by which stage Mr Puckridge was in police custody.
10 A formal analysis of the material was undertaken at the Forensic Science Laboratory in South Australia and the drug was confirmed to be 1,4-butanediol and the total weight of the drug analysis result was 11.4 litres. Those facts constitute Charge 1, trafficking in a drug of dependence not less than a commercial quantity.
11 In respect to the second charge of trafficking in a drug of dependence, methylamphetamine and cannabis, police executed a search warrant at your home in Caroline Springs on 20 June 2016. Numerous items were located indicative of trafficking including:
·a mobile phone with numerous apparent transactions recorded;
·$1,485 cash in your bedroom;
·scales and deal bags in your bedroom; and
·cutting agents located throughout the premises.
12 When arrested you were taken by police and a formal interview was then conducted, wherein you made a number of admissions in relation to selling 3.5 grams of methylamphetamine to one of your associates, Pru Few, for $700; and selling a couple of grams of marijuana to another associate, Johnny Lebeau, and that forms the basis of Charge 2, the trafficking charge between the dates, 20 May 2016 and 20 June 2016.
13 The text messages that were sent between yourself and your associates throughout the period indicate that you were regularly offering methamphetamine for sale, corresponding to requests for “shard”, “G” and “225” (referencing methylamphetamine), as well as “green” or “choof” (referencing cannabis).
14 Charge 3 on the indictment and the related summary charges concern a number of items that were located by the police at the time they executed the warrant. The unregistered air rifle was located in your bedroom, four assorted ammunition rounds were found in the lounge room, four samurai swords and a butterfly knife were in the lounge room and your room respectively, and the two large knives with sheathes were located in the lounge room.
15 During the record of interview you made a number of admissions in relation to supplying drugs to your friends, Pru Few and Johnny Lebeau. You denied making any profit from the sale of the methylamphetamine or cannabis. You made admissions in relation to the possession of the various items the police found. You told police that you did not know the butterfly knife was a prohibited weapon and also in respect to the swords, you said that you did not know that they were prohibited. You told police that the ammunition was just for show and that it would look cool and insofar as the other items were concerned, you said that they were an interest of yours. You denied any involvement in respect to the commercial trafficking charge, Charge 1, and refused to make any comment concerning the circumstances surrounding the events of 28 May 2016.
16 You fall to be sentenced in respect to Charge 1 in respect to a single transaction on one day.
17 Ms Ruddle, on behalf of the prosecution, conceded that this offending represents the lower end of the scale of seriousness for offences of this nature, and that concession is appropriately made.
18 In terms of assessing the objective gravity of the charge I have had regard to the maximum penalty prescribed by Parliament, and the amount of drug found.
19 The sentencing regime in respect to this drug is quantity based and I have had regard to the amount traded, which is almost six times the commercial quantity. Having regard to the amount of drug that was trafficked, I find that you engaged in this transaction with a view to making a profit. I was not satisfied on balance of probabilities that you stood to derive little or no benefit personally. The evidence relied upon by Mr Farrington was not convincing, given that it relates to a discussion that took place between two parties who were engaged in banter that was addressed at a number of different issues, talking about drug trades generally.
20 Nonetheless you will be sentenced in respect to this charge on the basis that your offending represents the lower end of seriousness for this serious charge and also in respect to the trafficking in a drug of dependence.
21 Insofar as these sorts of offences are concerned, it is important for the Court to emphasise both general and specific deterrence and on behalf of the community to formally denounce your behaviour. It is important that the Courts send a message out to would-be drug profiteers that in the event that they are apprehended they do face stern punishment.
22 I have had regard to your background history. You are now 32 and at the time of the offending you were aged between 30 to 31. Your parents, Mary and George Bugeja, support you. You were born and raised in Melbourne. You are the middle of their three children. You live with your parents currently.
23 You have been in a de facto relationship with Emillie Commisso for about 15 years. Currently you are living separately from her in accordance with the strict bail conditions that were imposed following the grant of bail on 3 August 2016. You were initially remanded in custody until that date and then you were released and part of the bail conditions were that you had to return to live with your parents, there was also a strict curfew condition and there were regular reporting requirements.
24 Emillie delivered your son, Mason, on 13 April 2017. Because of the strict bail conditions that imposed restrictions on you fulfilling your role as a parent. Nonetheless you have maintained daily contact with her and you have a strong bond with your son.
25 I noted your early years were somewhat problematic, characterised by your leaving home at age 16, there having been some conflict with your parents. You lived with friends. You were able to complete Year 11 and initially you demonstrated an excellent work history, having worked for about three years with McDonald’s, then having completed an apprenticeship in mechanics, and once having completed your apprenticeship you were successful in working as a mechanic with a number of employers.
26 Unfortunately you lost your employment at Essendon Kia following a restructure of that business about three years ago and it was not until your release on bail that you have been able to secure work as a mechanic again.
27 You have been in full time employment since March 2017 with Essendon Mitsubishi and the reference provided by Craig Freshney, the Fixed Operations Manager from that company, details both your employment and work capacity. He confirms you have shown great potential and maturity in the relatively short tenure that you have had with the company and that you have proved yourself to be a very valuable employee who shows great potential.
28 Another referee, Daren Mansueto, provided you with some employment, casual general maintenance work, following your release from prison and whilst working with him, he confirms that you demonstrated a commitment to moving forward with your life and remaining drug-free. He states that you were genuinely apologetic for your actions. He too speaks of your great potential, both personally and professionally.
29 I noted that the context of your offending was that for many years you had been in the grips of a drug addiction. Your poly-substance abuse dated back to your early teenage years. Smoking marijuana from age 14, increasing use over the years and smoking methylamphetamine from about age 22. You were addicted and smoking habitually until your arrest, smoking upwards of 1.5 grams per day. That provides the context to your offending and explains your involvement in this offending but in no way excuses your behaviour.
30 Following your discharge from prison on bail I am satisfied you have remained drug-free. The urine screens that were produced to the Court are all negative and the material from Amanda Brown, Senior Clinician at Lamberti & Associates, and her evidence, confirms that you have made good progress since your discharge from prison. You have regularly attended counselling, you have been abstinent from drug use and you are considered to be a person who is recovering from both methylamphetamine and cannabis use.
31 She considers that the sustained period of recovery increases your prospects of maintaining your recovery status. Ms Brown considers you now have insight into your drug-taking problems and the effects of drugs and that you are committed to reclaiming your life and living in a more pro-social way.
32 Mr Bugeja, your efforts at rehabilitation whilst in the community on strict bail conditions are to be commended and they do reflect a genuine commitment on your behalf to redress what motivated you to commit these serious offences. Overall, I consider having regard to your current drug-free status and your expressed commitment to continuing treatment evidenced by your attendances on Ms Brown, means that your prospects for rehabilitation are good.
33 I noted that you were charged with this offending on 20 May 2016. The committal hearing was conducted on 28 November 2016, at which stage you entered a plea of guilty. It is accepted that your plea of guilty was entered at an early stage and you are entitled to a discount on your sentence accordingly. I accept that the pleas of guilty have real utility and that you have facilitated justice. The pleas are also indicative of genuine remorse on your behalf, and that is further evidenced by the many references that were provided at the plea hearing.
34 You do come before the Court with only one matter that is unrelated. I have taken into account your otherwise previous prior good character and I have had regard to all the reference material that was filed from various friends and family. On the basis of all the material before me I am satisfied there is evidence that the fact that you were arrested and charged and detained in custody and spent 44 days in gaol has been a real catalyst for change for you. Through your intensive drug and alcohol rehabilitation you have demonstrated a genuine commitment to maintaining your drug abstinence. You are fortunate in that you do have good and strong family support. You are now in full time employment as a mechanic and you have taken seriously your commitment to your newborn son in providing appropriate support and assistance to Ms Commiso within the restrictions of your bail requirements.
35 Your parents speak of the dramatic change they have observed. They state that you are amenable to being provided with guidance from them, something that was absent in the past. You also appear to have disassociated from old drug taking friends. They confirm that you are no longer using drugs and they remain supportive of you.
36 On your behalf Mr Farrington sought a disposition that combined a gaol term with a Community Correction Order. The prosecutor, Ms Ruddle, sought a gaol term to be immediately served and submitted that a combination of gaol and a Community Correction Order was not within range. She nonetheless considered that your prospects for rehabilitation were good and that the Court could modify specific deterrence. She did emphasise the importance of general deterrence given the objective gravity and seriousness of the offending, especially Charge 1.
37 Overall, I have formed the view, having regard to the combined factors that I have highlighted in these sentencing remarks, that this is a case where the Court ought to recognise and reward your efforts at rehabilitation. It is very important to ensure that your rehabilitation continues and there is very considerable public interest in maintaining your rehabilitation, your full time employment, your commitment to your family and your commitment to acting in a more prosocial manner. I have had regard to the remarks of President Maxwell in the case of R v Tiburcy & Ors [2006] VCA 244, where he highlights that it is on occasion important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders, the preoccupation with retribution in much of the public comment on sentencing is understandable but it focusses only on one part of what the sentencing court does.
38 To send you back to prison at this stage would be a regressive step. It would undo all the work that has been achieved by you to date and would be counter-productive.
39 Finally, I have had regard to the guideline judgment of Boulton v R [2014] VSCA 342 and I have had regard to the positive Assessment Outcome Report that I have received that says you are suitable for a Community Correction Order (“CCO”) with conditions that I have already outlined. Such an order is punitive by reason of both the mandatory conditions and also the requirements for you to have to undergo 300 hours of community work and the treatment and rehabilitation programs that I have outlined.
40 I have also had regard to the dicta in Boulton that says a Court may order a CCO in cases even of relatively serious offending which might otherwise have previously attracted a medium term of imprisonment.
41 Notwithstanding the objective gravity of your conduct, I have had regard to your personal circumstances and consider that a properly conditioned CCO of a lengthy duration is capable of satisfying all the sentencing principles and represents just punishment whilst affording you the best prospects of rehabilitation. For those reasons I consider in all the circumstances that the court can impose a Community Correction Order in the terms that I have outlined.
42 I will now sentence you, Mr Bugeja, in respect to each of the offences, you are convicted and that includes the charges on the indictment as well as the related summary charges. You will be ordered to be placed on a Community Correction Order for a period of three years from today's date and the special conditions are that you must undertake 300 hours’ community work, treatment and rehabilitation for drugs, and treatment and rehabilitation programs to reduce reoffending, and that you will be subject to supervision by the Sunshine Community Corrections office, which is at 10 Foundry Road, Sunshine.
43 All right, s.6AAA declaration, but for your plea of guilty I would have imposed a period of imprisonment of two and a half years, to serve 18 months.
44 I make the disposal order sought and I make the forfeiture order sought in respect to the cash, the firearms, ammunition and pellets. That concludes my sentencing remarks.
45 MS RUDDLE: I have copies of all of those orders, Your Honour.
46 HER HONOUR: Good.
47 MS RUDDLE: There's also a 464ZA order.
48 HER HONOUR: Was there?
49 MS RUDDLE: Yes, Your Honour.
50 HER HONOUR: Do we have a note of that?
51 MS RUDDLE: I thought that I opened it on the last occasion.
52 HER HONOUR: I will just have a look.
53 MS RUDDLE: But it is not in the written outline.
54
HER HONOUR: No, it is not in the written outline and I cannot recall
Mr Farrington's response to that. Have you recorded that? I am just talking to my - - -
55 MS RUDDLE: Sorry, Your Honour, I would have been on my feet so I did not make a note.
56 HER HONOUR: All right. I am just talking to my associate just to see if she has got a note because I cannot remember offhand.
57 MS RUDDLE: We would be relying on the objective seriousness of the offending.
58 HER HONOUR: Yes. Have you got any instructions, Ms Hancock?
59 MS HANCOCK: I do not, Your Honour.
60 HER HONOUR: Do you want to get some?
61 MS HANCOCK: I do not, Your Honour, but I concede those.
62 HER HONOUR: Yes. I cannot remember that.
63 MS HANCOCK: No, I am sorry, I cannot shed any light, Your Honour.
64 HER HONOUR: No, that is fine.
65 MS HANCOCK: May I approach?
66 HER HONOUR: Yes, yes, certainly. Is there any note? No, there does not appear to be a note.
67 MS RUDDLE: It may be that I intended to say it and I did not, Your Honour.
68 HER HONOUR: Yes, that is fine. Here is the Community Correction Order. Can I give you that?
69 ASSOCIATE: Yes, (indistinct words).
70 HER HONOUR: Is there a note?
71 ASSOCIATE: (Indistinct words).
72 HER HONOUR: No. I cannot remember a s.464ZF. It is appropriate for one to be applied for.
73
MS RUDDLE: Just so Your Honour can be certain that I have dotted my
i's and crossed my t's finally, it is s.160(2) that applies the transitional provisions. I was looking at sub-s.(1).
74 HER HONOUR: That is all right.
75 MS RUDDLE: Thank you, Your Honour.
76 HER HONOUR: It is something that we have all got to be mindful of for the future.
77 MS HANCOCK: Yes, thank you, Your Honour. Your Honour, my instructions are that it is a matter for Your Honour.
78 HER HONOUR: It is a matter?
79 MS HANCOCK: It is a matter for Your Honour. We would note his good prospects for rehabilitation, lack of prior history.
80 HER HONOUR: Yes. All right. Having regard to the seriousness of the circumstances of the offending I do consider such an order is warranted and I think it is in the public interest.
81 MS RUDDLE: May it please the court.
82 HER HONOUR: What is the nearest police station?
83 MS HANCOCK: Keilor Downs, Your Honour.
84 HER HONOUR: Is that where he is reporting?
85 ACCUSED: Correct.
86 HER HONOUR: All right. Take a seat, Mr Bugeja. I have just got some orders that I have got to sign and then I will explain to you about the s.464ZF order.
87 All right, I have made an order that you have to attend the Keilor Downs Police Station within 28 days of this sentence to provide a scraping from your mouth. I have to advise you in the event that you do not cooperate police can use reasonable force to take a blood sample to enable that procedure to be conducted but I assume that you will cooperate so that will not be a problem. It is just a matter of attending the police station one more time, confirming that you are there for the taking of a forensic sample, and I will do that.
88
All right. Can you accompany my associate, Ms Hancock, and just get your client to sign the order in respect to the Community Correction Order?
Ms Ruddle, I will just get your instructor to redo the order for the forensic sample, just completing all the information. I think I have made a mess of that one. Can you give that back?
89 MS RUDDLE: Certainly, Your Honour.
90 HER HONOUR: Can you just get your instructor to send it to my associate?
91 MS RUDDLE: Yes, Your Honour.
92 HER HONOUR: Yes, and just for the future, I hate filling in these gaps, so if your instructor could ensure that all the bits and pieces are completed.
93 MS RUDDLE: I will ensure that is passed on, Your Honour.
94 HER HONOUR: Yes. It is just annoying. Can you make a copy while I am finishing off these orders? All right, so have you received that order, a copy of the order? Yes. Mr Bugeja can be released from the dock. All right, and has your client – he has got his appointments details for his attendance at Corrections, Ms Hancock?
95 MS HANCOCK: I need to ask. I apologise, Your Honour.
96 HER HONOUR: All right.
97 MS HANCOCK: I do not – I am not sure but I have advised him that he needs to go within two clear working days, so today or tomorrow.
98 HER HONOUR: Yes, I am pretty sure they have made an appointment for him. Have you been given a time to go to Sunshine?
99 ACCUSED: I have just been told within 48 hours, Your Honour.
100 HER HONOUR: All right. Well, the sooner the better, all right. Your bail conditions now cease but you are subject to the Community Correction Order, so I would suggest you go there today.
101 ACCUSED: Thank you.
102 HER HONOUR: But you do have two working days. All right, there are all the other orders.
103 MS RUDDLE: Thank you, Your Honour.
104 MS HANCOCK: As Your Honour pleases, thank you.
105 HER HONOUR: If that could be provided to the prosecutor. Thank you.
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