DPP v Lamberti
[2019] VCC 1498
•10 September 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-19-00843
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VITO LAMBERTI |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 21 August 2019 | |
DATE OF SENTENCE: | 10 September 2019 | |
CASE MAY BE CITED AS: | DPP v Lamberti | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1498 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: criminal law sentencing – trafficking in a drug of dependence – large commercial quantity – cocaine and methylamphetamine – knowingly deal with the proceeds of crime – relevant prior criminal history – standard sentencing principles applied – immediate term of imprisonment imposed.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991
Cases Cited:Muldrock v R (2011) 244 CLR 120; R v Brown [2018] VSC 742; R v Robertson [2019] VSC 145; DPP v Quah [2019] VCC 1158
Sentence: Immediate custodial sentence imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Regan (For Plea) Ms D. Tang | John Cain, Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr R van de Wiel QC Mr S. Andrianakis | Stephen Andrianakis & Associates |
HER HONOUR:
1 Vito Lamberti, you have pleaded guilty on Indictment to two charges of trafficking in a drug of dependence, namely cocaine (Charge 1) and methylamphetamine (Charge 2), in not less than a large commercial quantity. In addition, you pleaded guilty to Charge 3, knowingly deal with proceeds of crime.
2 The maximum penalties prescribed by Parliament for those offences are life imprisonment and 5000 penalty units in respect to the trafficking in a large commercial quantity of a drug of dependence charges and 15 years' imprisonment in respect to the knowingly deal with proceeds of crime charge. Those maximum penalties reflect the inherent gravity of such offending.
Standard sentencing scheme
3 The standard sentence scheme applies to nominated offences committed on or after 1 February 2018. Trafficking in a drug of dependence in not less than a large commercial quantity is one of the nominated offences.
4 The standard sentence for the offence is the sentence for an offence that, taking into account only objective factors affecting the relative seriousness of that offence, is the middle of the range of seriousness. The standard sentence applicable to the charge of trafficking in a large commercial quantity of a drug of dependence is 16 years.[1]
[1] See s.71(2) Drugs, Poisons and Controlled Substances Act 1991
5 Section 5A(3) of the Sentencing Act 1991 states that the objective factors affecting the relative seriousness of an offence are to be determined:
(a)without reference personal to a particular offender or class of offenders; and
(b) wholly by reference to the nature of the offending.
6 It is apparent from the way the legislation is framed, and from the extrinsic materials, including the Explanatory Memorandum and Second Reading Speech of the Attorney-General to the Legislative Assembly on 25 May 2017, Hansard 1509, that it was the intention of the Parliament to enact a scheme that is consistent with the approach of the High Court in Muldrock v The Queen.[2]
[2](2011) 244 CLR 120
7 This approach was applied by Champion J in R v Brown.[3] That has been subsequently applied in R v Robertson [2019] VSC 145 and by judges in this court when sentencing for standard sentence offences.
[3][2018] VSC 742
8 What can be drawn from the decisions is that the nomination by the legislature of a standard sentence does not make that sentence a starting point from which to add to or subtract. Rather, it requires the court to be 'mindful of two legislative guideposts: the maximum sentence and the standard non-parole period'.[4]
[4]Muldrock v R (supra) [27]
9 Pursuant to s.11A(4) of the Sentencing Act 1991, the court will be required to set a non-parole period in accordance with that section, unless it is in the interests of justice not to do so.[5]
[5]R v Brown (supra) at [65-68]
10 Thus, in addition to the sentencing guidelines that are set out in s.5 of the Sentencing Act 1991, and the applicable common law principles, s.5A, s.5B and s.11A of the Act have application to the sentence to be passed on you in respect to Charges 1 and 2 on the indictment.
11 Therefore, I have had regard to the fact that the standard sentence of 16 years has been one of the factors relevant to the 'instinctive synthesis' of the sentencing discretion.
12 I have also taken into account all factors relevant to determining the appropriate sentence in all the circumstances. The standard sentence is like other factors in s.5(2) of the Act and does not have primacy in the exercise of the discretion.[6]
[6](Supra) at [68]
13 I am obliged to take into account current sentencing practices pursuant to the Act. However, under s.5B(2)(b) of the Act, when considering current sentencing practices a court may only consider sentences passed after the implementation of the scheme.
14 Whilst a court could not have regard to the actual sentence imposed in cases prior to the introduction of the scheme, such cases may be relevant insofar as they reflect sentencing principles and purposes.
15 The prosecutor provided the court with the sentence of DPP v Quah.[7] Her Honour Judge Hampel sentenced an offender who was charged, amongst other charges, with a charge of trafficking in not less than a large commercial quantity of a drug of dependence, namely methylamphetamines, where the standard sentencing scheme applied. I have had regard to those reasons for sentence and the particular circumstances.
[7][2019] VCC 1158
16 There is currently no current sentencing practice for the offence of trafficking a large commercial quantity of drugs since the introduction of the standard sentencing scheme.
17 In the circumstances of Quah, Her Honour Judge Hampel, made a finding of mid‑range offending. The quantity of methylamphetamine was 2,867.7 grams, being 3.8 times the threshold for a large commercial quantity of that drug. In addition, Her Honour stated that possession of a gun, ammunition and other weapons that were found at the unit were to be properly regarded as the context in which the drug trafficking activity must be viewed for the single date charged. Based on the objective seriousness of the charge she found that it was mid-range offending and it could be established the offender was running a continuing commercial enterprise.
18 Upon your conviction in relation to Charge 2, you are to be sentenced as a serious drug offender pursuant to Part 2A of the Sentencing Act 1991. The prosecution does not seek a disproportionate sentence.
Prior criminal history
19 You have admitted your prior criminal history. There are six court appearances that span the period from 17 November 2004 to 1 March 2017.
20 You do have a relevant and troubling prior criminal history. You have had convictions recorded for trafficking heroin in 2004 and trafficking methylamphetamine and knowingly deal property suspected proceeds of crime in 2009. The circumstances of those offences are as follows-:
21 On 9 December 2004, you were arrested by police while seated in a vehicle in Little Lonsdale Street, Melbourne with two other males. You were found to be in possession of 15.5 grams of rock heroin in your front left pocket. You were sentenced to six months' imprisonment in respect to a trafficking heroin charge on 9 December 2004.
22 On 20 November 2009, at Melbourne County Court, you were convicted of trafficking a drug of dependence, use methylamphetamine, deal property suspected to be proceeds of crime and various firearms offences.
23 You were sentenced by His Honour Judge Taft to three years' imprisonment with a non‑parole period of 18 months.
24 The offending related to your arrest on 7 February 2008 following the execution of a search warrant at premises where you were then living in Bayswater. Police found $7,392.70 cash. A locked safe in your bedroom contained .45 calibre ammunition, three plastic bottles containing a proscribed precursor chemical, six plastic bags containing methylamphetamine and coins and cash. A .45 calibre handgun was found under your bed. A glad wrap bag containing white powder, a number of mobile phones and a plastic snap-lock bag containing crystalline powder was also found in your room.
25 The total weight of methylamphetamine located was 22.8 grams, the majority of which had a purity of about 14 per cent.
26 In addition, in the common area of the unit police found two sets of scales, plastic snap-lock bags, deal bags, records of drugs supplied and money owing and cash.
27 You pleaded guilty to dealing with property suspected of being the proceeds of crime. You were charged with trafficking on the basis of admissions made to police. You told them that you trafficked methylamphetamine over a period of 12 months. His Honour Judge Taft was satisfied the premises were being used to distribute methylamphetamines consistent with your admissions.
28 You further have convictions recorded in respect to other serious offending. You were convicted of armed robbery and two counts of attempted armed robbery in 2004. Those charges relate to some offending that occurred in company with one Brendon Rowlinson and Adam de Carla.
29 Rowlinson had hatched a plan to commit an armed robbery on the North Blackburn Safeway supermarket. De Carla provided an ornamental sword to him. The plan was that de Carla would go in and scope the supermarket and then Brendon Rowlinson would undertake the armed robbery. You were the nominated driver of the getaway car.
30 Things went horribly wrong when Rowlinson went into the store. He successfully obtained money from one cashier but, in the process of attempting to rob two others, he was thwarted when those staff members and an off-duty policeman overpowered and restrained him.
31 His Honour Judge Bourke sentenced you to 15 months imprisonment with a minimum non-parole period of nine months.
32 There are convictions recorded, on 24 March 2005, for obtaining property by deception and use false document to the prejudice of another, for which you were sentenced to an aggregate term of 10 months' imprisonment.
33 On 14 December 2005, you were convicted of obtaining property by deception and make false documents, for which you received a six-months term of imprisonment that was partially suspended for 12 months with the term to be served nominated as being three months.
34 Finally in 2017 you were convicted of an unlawful assault charge and contravening a family violence final intervention order and you were fined.
35 You completed parole without incident following your release in mid-2011.
36 You successfully established a business in property maintenance undertaking repair work for restaurants and businesses that continued until your arrest.
Circumstances of the offending
37 I shall now turn to the circumstances of the offending. I will proceed to sentence you on the current charges on the basis of the opening that was read by the prosecutor at the plea hearing.
38 Police attended in the vicinity of 32 Nature Avenue, Officer on Friday, 21 September 2018, in possession of an s.81 Drugs, Poisons and Controlled Substances Act 1981 search warrant.
39 Police intercepted you driving a vehicle nearby. A search of your vehicle was undertaken pursuant to s.82 of the Drugs, Poisons and Controlled Substances Act, but no drugs were found.
40 Meanwhile, the police had obtained peaceful entry to your parents' home at 32 Nature Avenue, Officer. Both of your parents were present. They had recently returned from being overseas.
41 You were invited back to the property to be present whilst the search was executed. During the conduct of the search, an envelope containing 2 clear snap-lock bags containing white powder believed to be cocaine were located on top of a kitchen dresser. You were then arrested.
42 The search continued and large quantities of cash were found in a blue plastic bag located on the floor of the lounge room, ($101,000), and further cash was found in the cavity behind the air-return duct in the hallway ($110,000). The total cash located at the property is the subject of Charge 3 was $211,000.
43 A moderate quantity of white crystal substance was located on the top drawer of your bedside table in your bedroom. A further snap-lock bag containing a white crystal substance was found on top of the kitchen dresser, together with a silver-coloured set of digital scales. A snap-lock bag of white substance was found in the garage, together with another set of digital scales.
44 The largest quantity of powdered drugs was located in a cavity behind the air‑return duct in the hallway. When the concealing panel of the duct was partially removed, items including a brown-wrapped, brick-sized parcel labelled C7, together with a plastic tub labelled 500, and another plastic tub labelled 222, was found. Those items were seized and later analysed.
45 The total quantity of cocaine mixture discovered on the property was 1,946.5 grams at between 80 to 83 per cent purity contained in the items detailed in paragraph 14 of the Crown opening.
46 A large commercial quantity of cocaine mixture as at 21 September 2018 was 1 kilogram. The quantity therefore was slightly over 1.9 times the large commercial threshold for cocaine mixture.
47 The total quantity of methylamphetamine mixture discovered on the property was 1,038 grams at between 84 and 85 per cent purity and they were found in the items detailed in paragraph 16 of the Crown opening.
48 A large commercial quantity of methylamphetamine mixture as at 21 September 2018 was 750 grams. The 1038 grams quantity found was therefore slightly over 1.38 times the large commercial threshold for methylamphetamine mixture.
49 Following your arrest you were formally interviewed and made no comment.
Procedural history
50 You entered a plea of guilty on 1 May 2019 at the contested committal prior to cross-examination of witnesses. Mr Regan on behalf of the prosecution accepted it was a plea of guilty entered at an early stage.
51 You have remained on remand since your arrest on 21 September 2018.
Objective gravity of the offending
52 Mr Regan, on behalf of the prosecution, submitted that the two charges of trafficking in a large commercial quantity of drugs of dependence represent serious examples of this type of offence, having regard to:
(i)the quantity of cocaine mixture being 1.946 times the large commercial quantity threshold, with purities varying between 80 to 83 per cent; and
(ii)the quantity of methylamphetamine mixture, being 1.384 times the large commercial quantity threshold, with purities ranging between 84 and 85 per cent.
53 Further, he submitted that the finding by police of a very large amount of cash totalling $211,000 at the premises in the manner earlier described that you knew to be proceeds of drug trafficking, means that the court can draw the following inferences:
(i) the drugs were not for personal use;
(ii)the offending is demonstrative of a criminal business conducted on a large scale; and
(iii) substantial harm is an anticipated consequence of the offending.
54 Mr van de Wiel, on your behalf, acknowledged that you did have in your possession the two types of drugs identified and the amounts of which were above a large commercial quantity. He submitted, based on the objective factors, that the court ought not make a finding that the offending represents mid-level offending.
55 He asserted from the Bar table that you were not running a business and that you were holding the drugs for persons unknown. You are addicted to illicit drugs and that therefore explains your involvement in the offending. Your reward was the provision of drugs for your own personal use.
56 No evidence was given concerning this explanation for your offending. In the absence of any evidence I reject this assertion that you were merely the custodian of the drugs and the money.
57 I am not able to make findings as to how you came into the possession of the drugs, nor what was the expected financial reward from having those drugs.
58 Mr van de Wiel submitted this was a case of trafficking simpliciter with there being no evidence to show that you were running a syndicate, plus there was no evidence from police surveillance or other means that you were involved with actual trafficking. He also highlighted there were no weapons found, unlike in the case of Quah.
59 Ultimately, all I can base my assessment on is the facts as they are known, which is that you were found in possession of a vast quantity of both cocaine and methylamphetamine that was more than a large commercial quantity, 1.9 times the amount in respect to the drug cocaine and 1.3 times the amount with respect to the drug methylamphetamine, together with the $211,000 cash. The majority of the drugs were concealed in the wall cavity at the premises.
60 The crime of trafficking in not less than a large commercial quantity is a quantity‑based crime. Both drugs found separately exceeded the amount stipulated as being a large commercial quantity.
61 For the purposes of identifying the gravity of the offence, and thus of ascertaining the appropriate sentence, the legislation places emphasis on the quantities of drugs trafficked and not on values.
62 In addition, I have had regard to the fact that the drugs the subject of both Charge 1 and 2, were each of high purity.
63 Those factors all lead to the inference that the drugs were not in your possession for personal use, rather that you were involved in a high-level and a well-organised and professional drug trafficking business.
64 I am satisfied in the circumstances that your offending is mid-level offending with respect to both Charges 1 and 2, notwithstanding the absence of any other evidence in relation to the nature of the business activity that is necessarily involved in the movement of the drugs. If there were further evidence then perhaps there might be a finding of even higher level of seriousness.
65 This, Mr Lamberti, is very serious offending. Both drugs that were found in your possession have a very real potential to cause great harm in our community.
66 The maximum sentence of life imprisonment prescribed for trafficking a large commercial quantity of a drug of dependence is a marker of its seriousness. In light of the large profits that may be derived by those who engage in trafficking such quantities of drugs, it is recognised and accepted by the courts that the principle of general deterrence must be given particular emphasis and denunciation must also be given substantial prominence[8].
[8]Nguyen v The Queen [2017] VSCA 262, at [36]
Djordjic v The Queen [2018] VSCA 227 [68]
67 It is important that persons like yourself who contemplate embarking on such an enterprise do so in the clear knowledge that if they are detected they will be sentenced to lengthy terms of imprisonment. In other words it is necessary that the sentences imposed for such drug trafficking be sufficiently severe to offset the lure of large, relatively easy profits, which can be derived from the trafficking of illicit drugs.
68 The various personal stresses and dispute between yourself and your former wife concerning your children and the associated legal proceedings does not in any way mitigate the objective gravity of the offending.
69 You resorted to using drugs to cope with the emotional turmoil associated with your frustrations at not being able to see your children.
70 Whilst providing an explanation for you resorting to using drugs, it does not fully explain why you chose to become involved in the business of trafficking drugs.
71 Having regard to the fact that you have relevant prior convictions for drug offences, trafficking in particular, and knowingly deal with the proceeds of crime, I consider that your moral culpability is high in respect to this offending and your behaviour is deserving of condign punishment.
Personal history and background
72 I have had regard to your personal history and background as set out by Mr van de Wiel. You are now 34 and you were born in Melbourne. Your parents are both from Calabria. Your father came to Australia when he was 15 and your mother aged 18. You are one of four children; there are three sisters.
73 Your family is a close-knit one. They have been present in court supporting you at the plea hearing. They regularly visit you in custody and remain supportive of you. On your eventual release, your parents have indicated that they are prepared for you to return to live in their home in order to facilitate your rehabilitation.
74 I have had read the report prepared by Dr Mathew Barth, psychologist, dated 27 November 2018. Mr van de Weil did not seek to rely upon the application of the principles set out in the case known as Verdins. The report was just provided by way of background.
75 Dr Barth found you suffered from stimulant‑use disorder in remission in a controlled environment and he recommended specialist substance-abuse treatment to assist you to gain further insight into your addiction and the risk factors that would precipitate a relapse.
76 He further suggested that you would benefit from psychological assistance that would improve your ability to coping and mood management strategies.
77 He considered that you are a person who has manifested disordered conduct since childhood, together with interpersonal and behavioural problems throughout your teens and early adult years.
78 He confirmed you started using illicit substances from as early as aged 14, commencing initially with cannabis and then progressing through a range of other drugs including heroin and, at the time of this offending, methylamphetamines. He considers your maladaptive adjustment and associated personality traits are clearly problematic. You only narrowly fail to meet the DSM-5 diagnostic criteria for personality disorder.
79 You told Dr Barth that you had had a relatively good upbringing and enjoyed a positive relationship with your parents and siblings but noted your father was very strict. You lived off and on during your teenage years with your parents, but because of ongoing tension you would leave. Despite this, you have never been estranged from your family and they remain an important part of your life.
80 Your behaviour was problematic at school. Ultimately you were expelled from one particular high school and then left school after completing Year 10.
81 You have a good work history. You completed a Certificate III in Bakery and worked as a baker for four years. You have also worked as a chef. You have worked in factories, packing and distribution, and prior to your arrest you had established a successful business, namely a business focussed on property management.
82 You have had strained personal relationships with the two significant intimate partners that you have had in your life, attributable to your drug abuse history.
83 The first relationship at age 21, was with Lenore, and that relationship ended because of drug use and your incarceration.
84 You then had a relationship with Angelica, whom you met in early 2013. You married and there are three children. You are now divorced.
85 You first separated following the birth of your eldest child. The relationship was problematic and your partner obtained intervention orders that prevented you seeing your child and that caused you some distress.
86 Eventually you were permitted to see your son on a limited basis and maintained a relationship with your partner.
87 A second child was born 2015 and a third born in September 2016.
88 There have been ongoing Family Court proceedings in relation to the children and you have not seen them for many years. Your wife has prevented your children from seeing their grandparents as well.
89 The problems with your relationship and subsequent proceedings have caused you great distress.
90 Dr Barth noted your substance abuse history and stated you relapsed into drug use in 2015, attributable to the deterioration of your marriage and difficulties experiencing regular contact with your children. You began using ice supplemented by cocaine and that use increased steadily such that you abused drugs on a daily basis.
91 In May 2018 you presented to St Vincent's emergency department following an overdose of cocaine.
92 In short, your drug use was intensely problematic until the time of your arrest.
93 Since you have been in custody you have not used drugs and one random drug screen negative test result has been recorded. Dr Barth states you are in the very early stages of your rehabilitation. He says you lack understanding of the development of relapse prevention planning and your coping skills during emotional distress remain underdeveloped. He says you require extensive substance abuse treatment if you are to enhance your rehabilitative prospects in the long term.
94 I accept the matters highlighted by Mr van de Weil in mitigation. You entered a plea of guilty at an early stage and that plea does have real utilitarian benefit. You have spared the state the cost and expense and inconvenience of a trial. You have facilitated justice and your sentence will be discounted accordingly.
95 The pleas do reflect acceptance on your behalf that your conduct was wrong and is some evidence of remorse.
96 You now express a strong motivation to commit to rehabilitation and treatment.
97 Further, you have utilised your time well in custody. There were certificates of achievement were provided to the court in relation to programs that address your drug use, particularly ice, cannabis and alcohol abuse. You are employed currently running the gym within the prison. You further wish to undertake a business course.
98 Overall I consider your prospects for rehabilitation are good. Your rehabilitation, however, is dependent upon you committing to addressing your chronic physical addiction to ice and cocaine and the difficulties that you have mediating your emotional responses when under stress.
99 I urge that the authorities give consideration to the recommendations that have been made by Dr Barth to enhance your rehabilitation prospects for the future.
100 Having regard to the seriousness of the offending, which is acknowledged by Mr van de Wiel, I do consider that a lengthy term of imprisonment is necessary. Have considered the mitigating and objective factors. Overall I consider they do warrant a sentence different to the standard sentence, taking into account all the facts and circumstances of your case.
101 Given your current circumstances, I do not consider that it is necessary to impose a sentence longer than that which is proportionate to the gravity of the offence in order to protect the community from you, noting that you are to be sentenced as a serious drug offender upon your conviction on Charge 2 pursuant to Part 2A of the Sentencing Act 1991.
102 As a consequence of the sentence imposed on Charge 1 you are to be sentenced as a serious offender under s.6E, so that, unless the court otherwise directs, the term of imprisonment to be imposed on you in relation to Charge 2 must be served cumulatively on the sentence imposed on Charge 1 and I propose to direct otherwise.
103 I have regard to the principle of totality.
104 In formulating just punishment I have had regard to the need to emphasise denunciation and in particular, the need to emphasise general deterrence and specific deterrence and the protection of the community.
105 I will now announce the formal orders, so I ask that you please stand, Mr Lamberti.
106 On Charge 1, the trafficking drug of dependence, large commercial quantity, cocaine, you are convicted and sentenced to 12 years' imprisonment.
107 Charge 2, trafficking large commercial quantity of methamphetamine, convicted and sentenced to 10 years' imprisonment.
108 Charge 3, knowingly deal with proceeds of crime, convicted and sentenced to 18 months' imprisonment.
109 I make the following orders for cumulation: two years of the sentence imposed on Charge 2 and one year of the sentence imposed on Charge 3 are cumulative upon each other and upon the sentence imposed on Charge 1. That makes a total effective sentence of 15 years' imprisonment. I fix a non-parole period of nine years.
110 I declare that you are a serious drug offender pursuant to s.89DI of the Sentencing Act 1991.
111 I make the disposal order sought.
112 I make the following declaration of pre‑sentence detention. I declare that you have served a total of 354 days' pre‑sentence detention and direct that that be entered into the records of the court.
113 Finally I make a s.6AAA declaration. But for your plea of guilty, I would have imposed a term of imprisonment of 18 years to serve 12 years. That completes my sentencing remarks.
114 All right, Mr Lamberti can be taken downstairs. We can adjourn the court.
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