R v David Graziano

[2008] NSWDC 384

CITATION:	R v David GRAZIANO [2008] NSWDC 384
JUDGMENT DATE:	28 July 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	For the cocaine offence - non parole period of 18 months, balance of term 12 months. For the ecstasy offence - non parole period of 1 year, balance of term of 6 months
CATCHWORDS:	CRIMINAL LAW - sentence - supply ecstasy and cocaine - form 1 offences - plea of guilty at earliest opportunity - dealer or courier? - offender used cocaine to alleviate pain from injuries sustained in car accident - offence committed whilst on conditional liberty
LEGISLATION CITED:	Crimes Act 1900 s 25 Crimes (Sentencing Procedure) Act 1999 s 10, s 32
PARTIES:	Regina David Graziano
FILE NUMBER(S):	08/6287
COUNSEL:	Mr Higgins for Mr Graziano
SOLICITORS:	Ms Fitzpatrick for the Director of Public Prosecutions

JUDGMENT

1. Mr Graziano I am going to sentence you now. You can stay seated. First I give my reasons for sentencing which will take ten minutes or so and at the end I will impose my sentence. I am going to give my reasons because it is a public process and everybody needs to know why I am sentencing you. Do you understand that? All right.

2. I am sentencing David Julian Graziano for two crimes. They are both drug offences. Both were committed against s 25 of the Drug Misuse and Trafficking Act 1985. Each offence carries a maximum penalty of fifteen years imprisonment. The first was an offence of supplying five and a half grams of ecstasy. The second was an offence of supplying 6.8 grams of cocaine.

3. Briefly the circumstances were these. The offences occurred on 16 February 2008. Mr Graziano was pulled over by the police, because of a random breath test. For various reasons police thought it fit to search his car. They found a bum bag in the car. In the bum bag and in other parts of the car, they found the drugs. The cocaine was distributed over some ten small bags containing white powder which was the cocaine. The ecstasy was in the form of nineteen pink tablets contained in its own plastic bag. Police also found cash which included $775 and a separate amount of $290.

4. Mr Graziano was committed for sentence on 1 May 2008, having pleaded guilty at the earliest opportunity. Mr Higgins, who appears for Mr Graziano, called his client to give evidence in the witness box. He confirmed other evidence which is in the form of medical reports which were consistent with him having suffered serious injuries in a motor car accident some years ago. This resulted in significant pain and discomfort for Mr Graziano. Various efforts at pain relief had limited success. Mr Graziano turned to the use of cocaine in order to alleviate his pain.

5. He was charged in 2007 with possession of cocaine. He received a bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 for that offence. That bond was imposed on 28 November 2007. It follows that when he committed these offences, some three months later, he was still subject to the bond which had been imposed upon him by the court.

6. Mr Graziano explained that he had the drugs because he was supplying them on behalf of a friend. The friend arranged for Mr Graziano to deliver drugs to other people. The person from whom he obtained the drugs, as I said, was a friend. The person to whom he delivered the drugs were friends. They all mixed in the same social circles. Mr Graziano described the drugs as for recreational purposes.

7. Also found in the car at the same time were a set of scales, a knife, two mobile phones and two pairs of scissors and, as I said, cash. Mr Graziano explained that he needed the scales to measure out his own drugs. The arrangement between him and his supplier was that for his delivery services he, Mr Graziano, would be paid in kind, that is in an allowance of cocaine.

8. The plastic bags I did not mention. He had a large number of unused, sealed plastic bags. They were, Mr Graziano said, for his own use to measure out his own amounts of the drug.

9. One issue which I ventilated and which is one of the issues I need to determine, is whether Mr Graziano was in fact the dealer in these drugs or merely the courier. He claims that he was a courier. The evidence points against this. I have a strong suspicion that he was in fact the supplier himself. However I am not satisfied of that beyond reasonable doubt. I am persuaded by Mr Higgins that various factors which he points to are inconsistent with that conclusion. One is the medical evidence which clearly supports that he is in need of pain relief. That in turn supports Mr Graziano’s account that he used the drugs for that purpose. The other is a certain frankness and candour exhibited in his evidence. As Mr Higgins said, he made certain admissions against his own interests. There was I observed, a certain candour about the way he gave his evidence. I am not satisfied beyond reasonable doubt that he was in fact the dealer. I am satisfied beyond reasonable doubt, which is consistent with his admission, that he had the drugs in his possession for the purposes of supplying and the role in which he was doing that was as a delivery person.

10. The $775 which he had in his possession I accept was payment for a job which he had done as a plumber and the $290 was the money which he had obtained from one of the persons to whom he supplied drugs, and he was taking that money or due to deliver it back to his own supplier of drugs.

11. Mr Graziano has signed a form under s 32 of the Crimes (Sentencing Procedure) Act which enables me to take into account two charges. Those two charges are having goods in custody, that is the amount of $290 and possessing a prohibited drug, namely .3 grams of cocaine. That was an amount found separately in Mr Graziano’s wallet. I here record that I propose to take into account those two offences when I am sentencing Mr Graziano for the offence of supplying the prohibited drug of cocaine.

12. As I said, on the personal side Mr Graziano has suffered a serious injury and the circumstances of his using, or rather supplying these drugs was in order to maintain his own drug usage which was rendered, so far as he was concerned, necessary as a form of pain relief.

13. I propose to fix sentences which will run concurrently and they will both date from 16 February 2008 when Mr Graziano was arrested. I do so because in this case, both drugs were destined for the same person and the two offences were, in truth part of one overall transaction. In this regard I accept Mr Higgins’ submission.

14. On the other hand, there are two factors which need to be taken into account which make this crime or these crimes serious. One is quite specific. That is that when he committed these offences Mr Graziano was on a bond. That means that when he came before the courts before, the courts entrusted him with his freedom. The court which sentenced him previously released him back into the community on condition that he be of good behaviour. Instead of doing that, Mr Graziano has assumed the liberty which the court gave him, to distribute drugs within the community.

15. That brings me to the second serious factor which is by way of a general observation about these sorts of crimes, rather than a specific aggravating factor for these two crimes. What Mr Graziano did is against the law, that is to state the obvious. But what is more important to observe is the reason for the law. These prohibited drugs everybody knows, are not only highly addictive but extremely dangerous. There is the potential for people to put their own health at serious risk. They put their health at serious risk by reason of the addiction, and also because they are ingesting into their bodies powerful, illicit drugs. This is a highly dangerous activity. What Mr Graziano was doing was facilitating the process whereby people - I accept that he knew those involved - were able to use these drugs. He was facilitating the process of distributing within the community, although to known people, who, he said, were experienced in taking them, dangerous and prohibited drugs. I accept the submission of Ms Fitzpatrick who appears for the prosecution that this was not an insignificant transaction. Nevertheless I accept that they were transactions which are towards the lower end of the scale of seriousness.

16. I should add that I do not propose to increase the sentence by way of taking into account the form 1 matters because of the fact that the form 1 matters both arose out of the same transaction. However I do propose to take into account the fact that these offences were committed on conditional liberty, although I also take into account Mr Higgins’ submission that his client, because of the impact of the car accident, had is rational decision making processes seriously affected.

17. I take into account and will allow a discount for Mr Graziano’s plea of guilty. In respect of the cocaine offence, just to elaborate on that last remark I had proposed to sentence Mr Graziano to a penalty of some forty months imprisonment. That is three years and four months. Instead I propose to reduce that by twenty-five per cent and the overall sentence that I will impose for the cocaine offence will be thirty months. Similarly, I had intended to impose for the ecstasy offence a penalty of some two years which I will reduce to eighteen months.

18. Would you stand up Mr Graziano? Mr Graziano for the offence of supplying cocaine I sentence you to two and a half years, that is thirty months imprisonment to commence on 16 February 2008 and to expire on 15 August 2010. I fix a non-parole period of eighteen months to commence on 16 February 2008 and to expire on 15 August 2009. In respect of the supply of cocaine I sentence you to eighteen months imprisonment to commence on 16 February 2008 and to expire on 15 August 2009 and I fix a non-parole period of one year to commence on 16 February 2008 and to expire on 15 February 2009.

HIGGINS: Your Honour I actually think you mentioned the cocaine twice.
HIS HONOUR: Did I? The second offence is ecstasy. Yes.
HIGGINS: So he got the eighteen month non-parole period for the cocaine?
HIS HONOUR: Correct.
HIGGINS: Which takes into account the form 1 matters.
HIS HONOUR: Correct.
HIGGINS: And he got the other sentence for the--
HIS HONOUR: Correct. So for the cocaine, it is two and a half years with an eighteen month non-parole period taking into account the form 1 matters and for the ecstasy, it is eighteen months head sentence with a twelve month non-parole period. Does that sound right?
HIGGINS: Yes thank you.

19. And I direct that you be released on parole on 15 February 2009. Have a seat Mr Graziano. Before I discharge my statutory obligation to explain that to Mr Graziano - direct his release on parole on 15 August 2009, thank you yes - is there anything Ms Fitzpatrick that I need to correct or add?

FITZPATRICK: Not--
HIS HONOUR: And the figures?
FITZPATRICK: Not with respect to the figures your Honour. Just looking at the ratio, has your Honour varied the ratio?

20. Yes, and I should have added that had I found special circumstances, thank you. I should add that in fixing the ratio that the non-parole period bears to the overall sentence, I have decided that there are special circumstances for varying that from the statutory norm, those being Mr Graziano’s age and the fact that this is his first period of custody and a need for drug rehabilitation. I might also ask you both for any recommendations that I should make for the conditions of parole. But before I do that are there any formal orders that I need to make or correct? I will come to the confiscation separately.

FITZPATRICK: Not with respect to that, but I will be seeking a drug destruction order.

HIS HONOUR: Thank you that is under section--

FITZPATRICK: I’m told 18 your Honour.

HIS HONOUR: All right if you look up that Ms Fitzpatrick. Anything else apart from that? I’ll just leave you to look that up.

FITZPATRICK: Then I’ll be withdrawing or seeking to withdraw the backups.

HIS HONOUR: I will attend to that, good. But the orders itself, the sentence, no corrections or formalities I have not yet observed.

FITZPATRICK: No.

HIS HONOUR: Thank you, now Mr Higgins are there any orders I need to make?

HIGGINS: No.

HIS HONOUR: Because the sentence is less than three years I have directed that he be released to parole on 15 August 2009. What kinds of conditions should I fix to that parole?

HIGGINS: That he obeys all the reasonable directions of the probation service.

HIS HONOUR: So put him under supervision?

HIGGINS: Yes.

HIS HONOUR: And obey directions and--

HIGGINS: That covers issues such as drug and alcohol rehabilitation. It’s less problematic if it comes before the Parole Authority that’s all.

HIS HONOUR: Yes. Ms Fitzpatrick, any suggested conditions?

FITZPATRICK: No your Honour.

21. It is a condition of his release to parole on 15 August 2009 that he subject himself to the supervision of the Probation and Parole Service for the balance of his parole and accept any reasonable recommendations or directions from them, in particular as such recommendations or directions may relate to drug rehabilitation. I direct the destruction of the drugs pursuant to s 39 P of the Drug Misuse and Trafficking Act 1985. You can thank my associate for that. What do I do with these? You were just about to tell me about these backup and related offences, I know you’ve told me before, what do you want me to do with them Ms Fitzpatrick?

FITZPATRICK: Seeking to withdraw sequence 5, possess prohibited drug backup offence, sequence 6 backup offence--

HIS HONOUR: So you seek to withdraw both of those? I assume that’s not opposed Mr Higgins?

HIGGINS: No your Honour.

22. I note and grant leave to the prosecution to withdraw sequence 5 and sequence 6, the two possess prohibited drug offences, yes.

FITZPATRICK: And also the related offence of sequence 4--

HIS HONOUR: Yes you withdraw that number 4--

FITZPATRICK: --goods in custody.

23. In addition I grant leave to the prosecution to withdraw the related offence, sequence 4, goods in custody.

HIS HONOUR: Anything else? We’ll come to that order in a minute. Anything else Mr--

HIGGINS: No thank you your Honour.

24. No. Now Mr Graziano, I have sentenced you to gaol for two and a half years for the cocaine supply, that’s the more serious offence. The two and a half years has a non-parole period of eighteen months. I’ve backdated it to 16 February which is when you were arrested and you’ve been in gaol since then is that right? Okay, so you were in gaol from 16 February and you will be released on 15 August 2009, that is in just over a years time. I have recommended or I haven't recommended, I have fixed as a condition of your release, that you are to take the advice of the Probation and Parole Service. You get into their supervision, if they make a recommendation or a direction and it’s reasonable, you follow it, particularly if it relates to drug use.

25. The other, the ecstasy offence I’ve also sentenced you to eighteen months with a non-parole period of twelve months, but that runs at the same time, so it’s really covered by the more serious offence, because I accepted Mr Higgins’ submission so far as that was concerned. Do you understand that? So your due date for release is 15 August 2009.

HIS HONOUR: Now the notice of motion Ms Fitzpatrick, Mr Higgins thinks the Nokia should be not forfeited. I’m inclined to agree with him. I’m inclined to accept the sworn evidence from his client. So there’s a forfeiture order and there are short minutes of order for the forfeiture order. So if in signing the short minutes, I’m ordering the forfeiture of the cash of $290, and I’m going to put one mobile phone. So he’s forfeiting the $290, the Vodafone and the car. Is that right?

HIGGINS: Correct.

HIS HONOUR: Does anybody oppose that?

HIGGINS: No your Honour.

FITZPATRICK: No your Honour.

26. Pursuant to the Confiscation of Proceeds of Crime Act 1989, I order pursuant to s 18(1) of that Act that cash in the sum of $290 found at Huntley’s Point in New South Wales on 16 February 2008 be forfeited to the State. Pursuant to the same section I order that one mobile phone, a black Vodafone phone, be forfeited to the State. Pursuant to the same section I order that the Daihatsu sedan registration number ZEV 143 be forfeited to the State. I consider that the value of the property is approximately $2,000 and I give leave pursuant to s 19 that the property forfeited be disposed of forthwith. The formal orders are those which I make in a document, short minutes of order which I have signed and dated today and which will be placed with the papers.

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