R v Foletti

[2004] VSC 304

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1434 of 2004

THE QUEEN

v

OLIVIAN FOLETTI

---

JUDGE:	KELLAM J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 August 2004
DATE OF SENTENCE:	24 August 2004
CASE MAY BE CITED AS:	R v Olivian Foletti
MEDIUM NEUTRAL CITATION:	[2004] VSC 304

---

CRIMINAL LAW – Possession of substantial quantity of ecstasy tablets – Plea of guilty – Delay – Previous good character – Suspended sentence of six months - Section 73(1)(c) of the Drugs, Poisons and Controlled Substances Act 1981 - Possession of a drug of dependence.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C. Gamble	Office of Public Prosecutions
For the Accused	Mr C. Traill (Solicitor)	C.T. Traill Lawyers

HIS HONOUR:

1. You, Olivian Foletti, have pleaded guilty before me to one count of possession of drugs of dependence, namely, the drug known as "ecstasy" and methylamphetamine. In addition, you have pleaded guilty before me to one count of possession of a drug of dependence, namely, Cannabis L. The maximum penalty for possession of drugs of dependence of the nature of "ecstasy" and methylamphetamine, under s.73(1)(c) of the Drugs, Poisons and Controlled Substances Act 1981 is $40,000, or five years' imprisonment, or both. On the basis that Count 2 relates to a small amount of cannabis in your possession which was not related to trafficking, and on the basis that the matter is being dealt with in this court, the maximum penalty is a $500 fine.

1. These crimes arise out of circumstances which took place on 19 May 2001.  For some time prior to that date a covert operation had been conducted by police against ecstasy and cocaine trafficking in the western suburbs.  Those police performed covert surveillance, and intercepted and recorded suspects' mobile telephone calls.  In the course of this operation, a covert police operative purchased ecstasy and cocaine from your husband, Walter.  The undercover operative met your husband Walter on a number of occasions in the carpark of the McDonald's restaurant at Sydenham.  On 12 April 2001 your husband sold 500 ecstasy tablets for $8,500 to the undercover operative.  On 24 April 2001 your husband sold an ounce of cocaine for $5,000 to the undercover operative.  On 3 May your husband sold 2,000 ecstasy tablets for $26,000.  Further sales took place on 14 May and 19 May 2001.  The sale which took place on 19 May 2001 was a sale of 8,000 tablets for the sum of $100,000.  After that sale your husband and his nephew, Pablo Foletti, were observed to drive back to your home.  It is alleged that a short time thereafter police observed Roberta Williams collect the sum of $100,000 from your house and deliver it to her husband, Carl Williams, at a nearby shopping centre.  Soon thereafter, Roberta and Carl Williams were arrested by police.  Almost immediately thereafter, your husband, in the company of his nephew Pablo, attended at the McDonald's store to sell a further number of ecstasy tablets to the undercover operative.  Whilst they were present at the premises of McDonald's you received a telephone call from someone alerting you to the fact that Carl and Roberta Williams had just been arrested.  You then telephoned your husband to advise him of this fact.  Immediately after that telephone call was made police arrested your husband, Walter Foletti.  Your house was then searched by police soon thereafter and a substantial quantity of ecstasy tablets were found in a heating vent. 

1. Notwithstanding that the evidence establishes that you had some knowledge that your husband was involved in the selling of drugs, it is not contended by the prosecution that you were a criminal accomplice to his drug selling business.  Rather, Count 1 on the presentment relates to the brief physical possession by you of a large number of ecstasy tablets found by police in the heating vent at your home address when the police attended there on 19 May 2001.  Subsequent to police finding those tablets, you were interviewed by police.  You told police that you knew the bag contained "drugs or something illegal" and that your husband was looking after it for others.  You told police that your husband requested that "if anything was to happen", you were to take a white plastic bag out of another bag and put it in the heating duct.  You told police that you did that several hours before their arrival.  You told police that you did not look in the white plastic bag but that you believed it contained "more than likely, drugs".  You agreed with police that you had telephoned your husband earlier that day to tell him of the arrests of Carl and Roberta Williams.

1. Count 2 on the presentment relates to your possession of a small amount of cannabis which was found upon your clothing upon arrest.  You told police that the cannabis belonged to your nephew, Pablo Foletti, and that he had left it in your kitchen and that you had put it in your pocket so that your children did not find it.  There is no reason to doubt that statement by you.

1. Insofar as Count 1 is concerned, it is apparent that you had possession of drugs of dependence. I am unable to be satisfied, on the balance of probabilities, that the offence was not committed by you for a purpose relating to trafficking in that drug of dependence, and accordingly the relevant penalty is that imposed by s.73(1)(c) of the Drugs, Poisons and Controlled Substances Act 1981 which is as I have said a fine of $40,000 or five years' imprisonment or both.

1. The possession by you of the quantity of drugs in question is a serious offence.  Although I accept you did not know the nature and quantity or precise value of the drugs in question, there is no doubt that you did know that the bag placed by you in the heating vent contained a substantial quantity of tablets.  The bag was later found to contain over 19,000 tablets.  Furthermore, and although there is no reason to believe that you were in any way involved in the trafficking of such drugs, it is apparent that you were aware that your husband was so involved.

1. The trafficking of such drugs causes immense harm to the youth of our community.  Your part in having possession of the drugs was designed to hide evidence of your husband's criminal activities from police, and although it is not suggested in any way that you were a criminal accomplice to his drug selling business, your conduct would have been of some assistance to him had police not found the drugs hidden by you.  In such circumstances, it must be regarded as a serious case of possession of drugs.

1. However, as has been pointed out by your counsel, Mr  Traill, there are a number of mitigating factors.   First, you have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so.  Your plea has saved the community the cost and inconvenience of a trial.  You admitted your part in the transaction in question to police when you were interviewed shortly after the events and although a reading of your record of interview demonstrates that you were not necessarily cooperative about the part played by others, you admitted your own part in having possession of the drugs.

1. I have been told something of your personal history and your circumstances.  You are now aged 35 years, having been born on 2 December 1969.  You were 31 years of age at the time of the offence.  You have no prior convictions and thus I sentence you as a person of previous good character.  A report from Mr  Ian Joblin, a forensic psychologist, dated 16 August 2004 has been tendered before me by consent.  I have read that report which sets out in some detail your history.  You were educated to Year 11 at Methodist Ladies College at Elsternwick and you completed Year 11 at Caulfield Secondary College.  You have been employed for most of the time since leaving school apart from short periods of time when your children were born.  You have been employed mainly as a retail salesperson, particularly in relation to the sale of children's wear.  You met Walter Foletti when you were 14 years of age.  He is seven years older than you.  Your relationship began when you were 21 and you were married in March 1993.  Walter Foletti has a son from a previous relationship who is aged 17.  You and Walter Foletti have three children, two daughters now aged ten and six, and a son aged eight.  These children live with you and attend school.  Mr  Joblin did not conclude that you suffered from any mental illness or any identifiable clinical psychological abnormality.  You told Mr  Joblin that you had no history of abuse of alcohol or drugs and you lamented your involvement with persons who have been involved with drug trafficking.  You expressed concern about the future of your children.  You have moved residence four times since your apprehension in relation to the matters before the court by reason of the notoriety which these matters have brought to bear upon your family.  You are fully aware of the circumstances which relate to your husband at present, who is one of your co-accused, and I am informed by your counsel that you are realistic as to the consequences which may possibly befall him.  You told Mr  Joblin that although you have extreme difficulty in accepting what you have read in the depositions in relation to his conduct you nevertheless have a strong sense of obligation and duty to support him.

1. I take into account too the references that have been put before me.  One is from Steven Minett who is a transport operations manager who has known you for seven years and regards you as a caring and loving mother to your three children and to your stepson.  Another is from a director of a stoneworks company who states that he has known you for a period of 15 years and considers that the matter which brings you before this court is out of character and that you are a hard-working mother who is devoted to your children.  In addition, documents have been put before me supporting the fact that you are well-regarded by your employer, a clothing retailer, as an area manager of stores conducted by that employer.  That material demonstrates, as your counsel submits, that you are a person with a good work ethic and that you have the capacity to lead a useful life in the community.  You work long hours and I am informed that you earn $750 per week.  Depending upon circumstances which are yet to unfold, there is a realistic possibility that you will be required to provide the sole financial and other support to your children for a period of time and I take that possibility into account.

1. There has been significant delay in these matters coming before the court and you have attended various case conferences and directions hearings on approximately a dozen occasions throughout the period of nearly three and a half years since your arrest.  The delay in relation to these matters coming on for trial has occurred through no fault of your own, but rather I conclude, in consequence of the fact that you have a number of co-accused who are charged with considerably more serious offences.

1. Your plea of guilty, the delay in bringing this matter to trial, your good work record, your previous good character, together with the fact that I accept that your criminal behaviour was related more to the sense of loyalty you had to your husband than to any direct benefit to yourself, are significant matters.  Furthermore, although I have no doubt that the bag placed by you in the heating vent contained a substantial quantity of drugs, I accept that you did not know the full value thereof.

1. All of the above matters are powerful matters of mitigation.  That said, however, the circumstances are such that in my view there is no alternative but to impose a term of imprisonment.  This is a serious case of possession of drugs and the principle of general deterrence is of considerable importance.  That said, however, the mitigating factors to which I have referred above lead me to conclude that the community interest is not served by your being required to serve such a term of imprisonment immediately.

1. Accordingly, on Count 1, I convict you and sentence you to six months' imprisonment which I wholly suspend for a period of two years.  On Count 2, I fine you in the sum of $100 without conviction.  I will grant a stay of one month for payment of the fine on Count 2.

1. I am required to explain to you in relation to the sentence I have imposed on Count 1 that if you commit a criminal offence during the period of suspended sentence, which is two years, which I have imposed on Count 1, you are liable to be brought before the court and charged with breach of suspended sentence and if that occurs you will become liable to serve the six months' imprisonment.  Do you understand that?

1. PRISONER:  Yes, sir.

1. HIS HONOUR:  Thank you.  You can be discharged

---