R v Foletti
[2004] VSC 277
•10 August 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1434 of 2004
| THE QUEEN |
| v |
| PABLO JOSE FOLETTI |
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JUDGE: | KELLAM J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 August 2004 | |
DATE OF SENTENCE: | 10 August 2004 | |
CASE MAY BE CITED AS: | R v Pablo Foletti | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 277 | |
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CRIMINAL LAW – Plea of guilty to one count of trafficking of ecstasy in commercial quantity – Minor part played by prisoner – Delay between offence and trial – Evidence of rehabilitation by prisoner during period of delay after having served 354 days pre-trial detention before being bailed – Sentence of 20 months’ imprisonment with partial suspension of 8 months 11 days.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M.A. Gamble | Office of Public Prosecutions |
| For the Accused | Mr S. Tyrrell | Balot Reilly |
HIS HONOUR:
Pablo Jose Foletti, you have pleaded guilty before me to one count of trafficking in a drug of dependence in quantities that were not less than the commercial quantities applicable to that drug. The principal drug in question is commonly referred to as ecstasy. The offence to which you have pleaded guilty is a serious offence and carries a maximum term of imprisonment of 25 years.
The prosecution alleges that you trafficked in ecstasy on one occasion, on 19 May 2001.
The background to your offence is that between March and May of 2001 police were conducting a covert operation targeting the illegal sale of ecstasy in the western suburbs. They performed covert surveillance upon a number of people and, in particular, upon your co-accused. Through a covert police operative a purchase of ecstasy and cocaine was made from your uncle, Walter Foletti, who is a man aged approximately 40 years. In the period of time leading up to 19 May 2001 the covert operative had dealt with your uncle, Walter Foletti, on a number of occasions and had purchased ecstasy tablets from him. There is no evidence before me that you were aware of these matters.
However, on 19 May 2001 the covert operative rang your uncle, Walter Foletti, and a meeting time was arranged. On the occasion of that meeting, in the afternoon of that day, you attended in a motor car with your uncle, Walter Foletti. Your uncle spoke to the covert operative whilst you remained in your uncle's car. A short time later your uncle asked you to go and get a bag which, as it turned out, contained some 8,000 ecstasy tablets. Upon being requested to get this bag, you drove to your uncle's house, retrieved the bag, returned and gave it to your uncle. Your uncle then sold the covert operative the tablets and received the sum of $100,000 in cash. Subsequently you and your uncle drove back to your uncle's home address and returned to the scene and were arrested by police.
Shortly thereafter you were interviewed by police. It is apparent from the interview that you attended the car park knowing that your uncle was going to give the covert operative ecstasy pills. It is apparent that even if you did not know precisely what was in the bag which you were asked to pick up and return to your uncle on the day of the transaction, you clearly believed that there was an extremely high probability that the bag contained drugs and drugs of the nature of ecstasy. There is no evidence that you knew the precise quantity of such drugs nor is there any evidence that you were going to get any benefit for assisting your uncle other than that of the maintenance of family relationships.
The prosecution, through Mr Gamble, this morning has conceded that there is no evidence that you were involved in any preparation or planning of the drug transaction. In these circumstances, and although the offence of trafficking, particularly in these quantities, is serious indeed, it is apparent that you played a minor part as a courier for a brief period of time.
Nevertheless, the trafficking of drugs causes great harm to the youth of our community. Indeed, you have your own experience of this. For this reason such offences must be regarded seriously by the courts. Whilst you did play a minor part in the trafficking in question, it must be remembered that major drug traffickers rely upon those such as you to be the couriers and to move drugs around the community.
Trafficking of the type in which you engaged would almost invariably justify the imposition of a substantial prison sentence, particularly in the case of a person who has prior convictions for trafficking drugs. However, there are a number of mitigating factors which have been pointed out by your counsel this morning. First, and significantly, you have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and not inconsiderable cost of a trial. Furthermore, I take into account in your favour the fact that you intimated early your intention to plead guilty to this charge. It has always been contended by you that that was the course you would follow. As I have stated, you were apprehended quickly, and you made a ready admission of the part played by you in the transaction in question. I accept that your plea indicates remorse for your actions.
I have been told something of your personal history and your circumstances. You are now aged 26 years; at the time of the offence you were 23 years of age. You have admitted before me to prior convictions and the nature of some of those prior convictions is such that they are relevant to my task of sentencing you today. You were convicted of theft and going equipped to steal in 1996. These matters are not of significance in terms of my task today but that matter was no doubt related in some way to the fact that you were a heroin user at that time. Subsequently, in January of 1999 you were convicted of trafficking in heroin and being in possession of and using heroin. I accept that you were a heroin user at that time. Of some concern to me is the fact that you were convicted in March 2000 of being in possession of heroin and trafficking in heroin, but likewise I recognise that you were convicted of using heroin at the same time. You were sentenced to three months' imprisonment which sentence was wholly suspended for a period of 12 months. Again, I accept that you were a heroin user at that time. Of course, it was soon after the expiry of this suspended sentence that you engaged in the conduct with which I am concerned. This does indicate that the suspended sentence you received in 2000 did not deter you from involvement with drugs and thus the issue of specific deterrence is not without significance, although I recognise that the period of time which has elapsed since then is over three years.
Evidence has been led on your behalf. I heard from Mr Carlos Martinez who has known you for most of your lifetime. He is a real estate agent and is prepared to employ you in the future as a maintenance man undertaking maintenance works for premises which he manages under his rental role as an estate agent.
Reports prepared by Mr Healey, a psychologist who saw you in June 2001 and just yesterday, have been tendered before me by consent. I have read those reports and I take the contents into account. On the first occasion that Mr Healey saw you, you had been in custody for a month. At that time, Mr Healey concluded that you were an immature man and that exposure to the adult custodial system was likely to be somewhat traumatic for you.
This morning, your counsel, Mr Tyrrell, has informed me that this indeed proved to be the fact.
Mr Healey's report contains a history of your life. You were born in Carlton and you lived with your mother in Carlton before she obtained a Ministry of Housing flat in Ascot Vale and later in Braybrook. She separated from your father at an early stage in your life and you have had little contact with him. When you were 13 your mother met her present partner whose father later purchased a house in Sydenham. You, your mother and her partner went to live in that house but unfortunately a disagreement arose with your mother's partner's father. Because of that disagreement, which appears to have had nothing to do with you, you then moved to live with your uncle, Walter Foletti, shortly before the date of the offence in question. You had had regular contact with your uncle over the years leading up to this and indeed the evidence before me is that you had worked for him from time to time learning aspects of the trade of tiling in which you had some training whilst working for him.
You commenced using drugs at the age of 16 and subsequently became a heroin user. You made several unsuccessful attempts at withdrawal through a Naltrexone program and in approximately December 2000 you achieved success in overcoming your addiction through a Naltrexone implant. Having achieved that success, it was an unhappy matter that you became involved in the matters which now bring you before this court. I was informed by Mr Tyrrell on your plea that you have remained free of addiction since that time.
Mr Healey, in his latest report, noted that since you were bailed, after serving 354 days pre-sentence detention on the charge which is now before me, you have abided by bail conditions and sought a further Naltrexone implant to assist you to remain drug free.
You have, since the commission of this offence, developed a new relationship and since your release on bail in mid 2002 you have been in work from time to time through a labour hire agency. In this regard I take note of the reference which has been tendered before me by consent from Mr Andrew Mangion, the director of Don's Fencing Pty Ltd. In that reference he notes that you have done some unpaid work for him in recent times and he speaks well of you.
You have been in no further trouble since this matter arose. There has been a significant delay in this matter coming on for trial. It is now over four years since you were arrested. You were, as I have noted, held on detention without bail for nearly a year before being granted bail. These are significant matters in mitigation, in my view. This proceeding has been hanging over your head at a formative stage in your life. Clearly, you have suffered uncertainty through the course of the delay which does not appear to have occurred by any fault on your part but, rather, it would seem by reason of the complexity of processes related to the trial of your co‑accused in relation to these matters.
There can be no doubt that notwithstanding the limited part played by you in the trafficking of drugs on 19 May 2001, a term of imprisonment is appropriate.
Clearly, as well as matters personal to you, such as the chances of your rehabilitation and the issue of special deterrence, I must also take into account other matters such as general deterrence. Those who traffic in drugs must know that if detected they will suffer significant penalty.
I have given anxious consideration to the issue of general deterrence in the context of the circumstances before me in your case.
The prosecutor has conceded that the time you have served already by way of detention is within the range of a minimum term of imprisonment which might be imposed for the offence committed by you in all the circumstances. That concession appears to me to be a proper concession in all the circumstances.
In the end result, balancing the fact of your age, the fact that you appear to have made good progress over the more than three years since your offence was committed, together with the issues of delay and the prospects of rehabilitation, in which regard you now appear to have made some progress, I have concluded that the community interest would not be served by a further term of imprisonment to serve being imposed upon you. That is, although I consider there is no alternative in all the circumstances, particularly in the circumstances of your prior convictions, but to impose a term of imprisonment, I consider it appropriate to partly suspend that term. I accept, as submitted, that you were placed in a difficult position by your relationship with Walter Foletti and that you were an immature person at the time. I accept that if you stay free of drugs you have reasonable prospects of learning from your experience before this court and not offending again. In all the circumstances, I am satisfied that it is desirable to impose a suspended sentence pursuant to s.27 of the Sentencing Act.
I sentence you to 20 months' imprisonment of which I suspend a period of eight months and 11 days for a period of two years.
Mr Foletti, I am obliged by the legislation to explain to you the purpose and the effect of the proposed order.
You have been sentenced to a term of 20 months' imprisonment. I have taken into account the period of 354 days served by you as pre-sentence detention as time which I declare has already been served. I will suspend the remaining period of your sentence for a period of two years from today. If you commit another offence punishable by imprisonment during that operational period of two years, you are liable to be charged with the breach of the suspended sentence, and return to court and you may be required to serve the whole of the suspended period in prison. Let me make it clear to you that by the suspension of this sentence you are being given the opportunity to continue with your rehabilitation, to obtain employment and to make a useful life as a contributor to the community. The choice is up to you as to whether you become a useful member of society or not. Should you come back before me on a breach of the suspended sentence, I will know what choice you have made and you can expect that the overwhelming likelihood, particularly if you are in any way associated with drugs in the future, is that the suspended sentence will be re-imposed.
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