DPP v Mercuri
[2017] VCC 1658
•31 October 2017
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-17-00132
DIRECTOR OF PUBLIC PROSECUTIONS Prosecution
v
RAY MERCURI Defendant
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JUDGE: HIS HONOUR JUDGE MURPHY
DATE OF HEARING: 30 October 2017
DATE OF SENTENCE: 31 October 2017
CASE MAY BE CITED AS: DPP v Mercuri
MEDIUM NEUTRAL CITATION: [2017] VCC 1658
REASONS FOR SENTENCE
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CRIMINAL LAW – Sentence – Trafficking in a drug of dependence – Methylamphetamine – Plea of guilty – Offending over a four month period – Limited prior convictions – Pre-sentence detention spent in lockdown – 212 days of pre-sentence declared as time served – Community Corrections Order imposed
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APPEARANCES: Counsel Solicitors
For the Crown Mr N Batten Solicitor for the Office of
Public Prosecutions
For the Defendant Mr C Pearson C Marshall & Associates
HIS HONOUR:
Ray Mercuri, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely methylamphetamine. The maximum penalty is 15 years’ imprisonment.
Circumstances of offending
The circumstances of offending were set out in the Crown Opening which was read in open court on the plea when you were arraigned jointly with Chris Patris (’Patris’). Your offending is different from that of Patris. He will be dealt with at a later stage.
You have pleaded guilty to a single charge of trafficking over a period from January 2015 until April 2015. It involved the receipt of two deliveries of methylamphetamine – the first being 7 grams and the second being 49.5 grams that was found in a speaker box found in the bedroom of Craig Norman (‘Norman’). Norman occupied a property that you and Patris conducted your operation from.
The charges that relate to Mr Patris, being the trafficking of the methylamphetamine found in the roof cavity and the possession of the firearm, are not applicable to you, and you are not to be sentenced for them.
Seriousness of the offending
Obviously, trafficking methylamphetamine in any amount is a serious offence. It is a scourge on the community. The two amounts, which total 56.5 grams, puts this offence towards the lower end of the range. However, this is nevertheless a serious offence.
Significantly, you have become before the court at age 36 with only one prior appearance alleged against you. This prior appearance occurred in 2011 and is not related to drugs, but included family violence type offences and driving offences, which related to the breakdown of a business and personal relationship. Effectively, you come before this Court as a first offender for drug offending. As indicated by the maximum penalty of 15 years, this is a serious offence. The Court of Appeal has said on numerous occasions that all forms of drug trafficking, whatever role played by the offender, imprisonment is generally the appropriate sentence.
Matters in mitigation
Mr Pearson put a comprehensive plea submission to me on your behalf which I incorporate by reference. You have had problems with recreational drugs, but since your arrest in July 2015 and spending several months in prison, you have become drug-free. You have seen the error of your ways and you have developed a new relationship and your partner was in court to support you.
You have been supported in this proceeding by your parents who are both here in court. In addition, references from your current employer and past employer were also tendered in support of you.
Since your time in gaol, you are now in full-time employment, living with your partner. She is expecting a child. This shows that you are in a stable relationship – she supports the proposition that you are now drug-free.
10.You are out of the drug milieu and are on the way to rehabilitation. This is also supported by the letter from your brother, Mark, together with other character references tendered on the plea.
11.You are currently on a Community Corrections Order for other drug and dishonesty offending, for which there was no prior conviction. A report by the Office of Corrections indicates that you have generally been doing well on the order. Whilst you still have a number of unpaid community work hours outstanding, you have been complying with the conditions, including supervision and offending behaviour programs. This order still has approximately six months remaining.
12.In terms of other mitigating factors, your counsel referred to the fact that you have pleaded guilty. It took many months to resolve this matter, but your counsel referred to the fact that you were willing to plead guilty to trafficking simpliciter as early as February 2017. The matter was finally resolved at the time of the final directions hearing in September 2017, and a number of other charges against you were withdrawn. Your counsel submitted, and I accept, that your plea is to be regarded as an early plea.
13.Further, there is evidence of remorse and insight into your offending by the fact that you are now drug-free, you expressed remorse to your partner in a letter, and the report of Mr Ball also supports this. Interestingly, he states that you have suffered from a severe stimulant disorder, but you are now in full remission.
14.As such, you could not ask for a better report from a forensic psychiatrist. He does qualify this with the fact that his conclusions are based on self-reporting only. He does provide support for the fact that you are now drug-free, as indicated by the drugs screens that the Office of Corrections have required you to undertake. So it would seem that your drug use is a thing of the past.
Purposes of sentencing
15.The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
16.These considerations are incommensurable in a sense, but in this case, most significantly, you spent 212 days in custody, virtually on full lockdown due to problems in the prison system. This obviously is an onerous form of punishment. Additionally, after being released on bail, you complied with very strict conditions of bail for 11 months including reporting to police three times per week, a daily curfew and various other conditions. These matters were quite coercive and you are entitled to have them taken into account.
17.In a submission, the learned Crown prosecutor conceded that pre-sentence detention was open to the court to be considered as an appropriate sentence, rather than a further period of imprisonment. I accept this submission. As Mr Pearson put to me, you are well on the way to rehabilitation.
18.At the end of the day, however, you now have a conviction for trafficking a drug of dependence. You have served time in prison as a result. I am also going to impose a Community Corrections Order upon you, to coincide with the conclusion of the current Community Corrections Order you are on.
19.You have been told previously about the requirements of such an order, that you must attend at the Office of Corrections within the next two business days, e under supervision, obey lawful instructions, inform them of a change of address, and undergo treatment and testing for drug abuse or dependency as directed.
20.The Community Corrections Order will last for 188 days and will conclude on the same day as the current Community Corrections Order you are on.
21.I have taken into account the matters put on your behalf by Mr Pearson, including the delay, your plea of guilty, your personal circumstances and the fact that you are now drug-free.
Sentence
22.Accordingly, on the charge of trafficking in a drug of dependence, you are sentenced to 212 days imprisonment. In addition, you are sentenced to a 188 day Community Corrections Order, with the conditions I have outlined above.
23.I declare that you have served 212 days of pre-sentence detention and direct that it be noted in the Records of the Court.
24.I declare, pursuant to s. 6AAA of the Sentencing Act 1991, that had you not pleaded guilty, I would have imposed a 12 month sentence of imprisonment.
25.I will also make the Disposal Order as agreed by the parties.
26.Mr Mercuri, you now have got a not insignificant rap sheet. If you come before me for another offence between now and May 2018 that carries a term of imprisonment, that will breach this Order and you will not get any sympathy. If you go before any other court, they will see your criminal record and you will not get any leniency. But it is obvious you have turned the corner. I commend you for the actions you have taken thus far and hope you can put this behind you and move on to become a more productive member of the community.
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