DPP v Dattoli [2015] VCC 1195

1. The circumstances of your offending was set out in the Crown Opening ,which was read in open Court on the plea. In brief summary, late on 26 November 2014 you were observed by police driving a Range Rover vehicle erratically in Diamond Creek. You are intercepted at South Morang after a short pursuit in which the vehicle veered across double lines. Upon interception, police discovered cash in your possession of $1,851.05. You further stated that you had been given that money when you are released from gaol. The possession of this money constitutes the first summary offence.
2. You stated that the car was your employer's car. You were disqualified from driving at the time and this was the second summary offence. The car was searched and between the front seats was found a zip lock bag and in it were 11 small zip lock bags containing a white, crystal substance. These were later analysed and found to contain just under 27 grams of methylamphetamine with a 90 per cent purity. The possession of the methylamphetamine constitutes the second charge.

1. In the back passenger section of the car a plastic container was discovered containing a liquid, later analysed to be seven litres of 1,4-Butanediol. When asked about the container you said it was not yours. This constitutes Count 1, as the liquid is a prohibited drug.
2. Located in the car were pieces of paper and a notebook which contained names and dollar amounts. You gave a 'no comment' record of interview to the police.

1. It is appropriate to consider a brief chronology. You admitted your prior criminal record. This indicates that you were before the Broadmeadows Magistrates' Court on 1 May 2014, on charges of driving whilst suspended, using an unregistered motor vehicle, two counts of failing to answer bail, driving whilst disqualified, exceeding a speed limit, using a mobile phone and driving whilst disqualified. You were placed on a Community Based Order for a period of 15 months and you were disqualified from driving for a period of nine months.
2. In June you were arrested for some drug offences and bailed. On

4 November you were again arrested for some further drug related offending. You were before the Broadmeadows Magistrates' Court on 20 November 2014, where you were convicted of two counts of trafficking methylamphetamine, where you were given 12 months imprisonment concurrent. You were also convicted of trafficking a drug dependence, trafficking cocaine, trafficking ecstasy, and on each charge a nine month concurrent sentence was imposed.

3. On charges of using methylamphetamine, failing to stop a vehicle on police request and driving whilst disqualified. You were placed on an 18 months community based order, and on two counts of dealing with property suspected being the proceeds of crime, you were placed on an 18 months community based order. On driving at a speed dangerous, you were placed on an 18 months community based order and you were disqualified for 12 months. The community based order was to commence on 25 November 2015.
4. You appealed that sentence. At that time you had been in custody for some 17 days following your arrest on 4 November for some of the offences which were subsequently dealt with. Seventeen days pre-sentence detention was declared. You appealed that sentence and were released from custody and these offences occurred six days later on 26 November.
5. There are thus two aggravating factors following that chronology. First, you were on a community based order that had originally been imposed on

11 May 2014, which remained in place. And second, you were on appeal bail after having been dealt with by a magistrate for similar drug offences on 20 November 2014.

6. Turning to the actual offences themselves, the most serious offence is trafficking Butanediol in a commercial quantity. It was accepted on the plea that you were found to be in possession of this drug for the purposes of trafficking. On the plea, evidence was given that this drug has only recently been placed on the prohibited substance list. It has use as an industrial solvent and is apparently taken in small quantities in liquid form, where it metabolises into another well-known drug GHB.
7. On the plea your counsel tended an internet download which indicated that this particular substance can be purchased on the internet for US$22 for 900 grams.
8. No meaningful evidence was put before the Court as to the possible amount you may have been obtained when the liquid was converted into smaller amounts and sold at a retail level. It was stated however that the drug is sold in liquid form in amounts of millilitres, with individual deals to the value of $5 to $10. This would seem to indicate that the money available from the amount which you have admitted to be in possession for the purpose of trafficking is in the region of thousands of dollars, rather than tens of thousands of dollars.
9. Further, to achieve that would require the liquid be made into capsules and then distributed at a retail level. Your particular position in the hierarchy did not emerge other than you were found in possession of what was obviously an amount that needed to be transformed before it could be placed into the trafficking hierarchy.
10. The sentencing regime for trafficking prohibited drugs is a quantity based regime. This indicates that you were in possession of seven litres, which is 3.5 times the commercial quantity. There is no large commercial quantity for this particular drug. A traffickable quantity for this drug is 50 grams and a small quantity is ten grams. There was no evidence as to the actual purity of the particular drug seized.
11. Given the amount of drug seized, and having regard to the fact that it was not in a state to be immediately sold, and that the plea was made on the basis of the drug being in your possession for sale, I regard this offending as in the mid-range of seriousness.
12. Turning to the second count on the presentment of trafficking in methylamphetamine. The amount seized from you was 23 per cent of a commercial quantity. You were in possession of cash and the methylamphetamine had been prepared ready for sale. Further, you had in your possession notes indicating that you were in the business of selling drugs. When this is combined with your prior convictions, imposed only six days before the offending, I regard the offending here as relatively serious.
13. The first summary offence of being in possession of property reasonably suspected of being stolen is part and parcel of your drug dealing. The offence of driving whilst disqualified is serious, given that only six days previously you had been before the Magistrates' Court on your drug offences, and six months earlier you had been before the Magistrates' Court where the licence disqualification was imposed.
14. Further, as I have indicated, all these offences occurred when you were still under the Community Corrections Order that was imposed on 1 May 2014 by the Broadmeadows Magistrates' Court and you were on the appeal bail, seeking to appeal the sentences imposed by the Magistrates' Court on

1. I have already referred to your prior convictions. You are aged 35 and it is very significant, and was emphasised by your counsel, that your prior convictions only commence in May 2014 and involve only two previous court appearances. Your counsel emphasised that this is a relevant matter when considering your prospects of rehabilitation and I accept that submission.
2. As I have indicated you are aged 35. You are of Italian extraction. You are the youngest of five children. Your father was in the concreting business and worked hard to provide for his family. You were brought up in the Thomastown area and left school during Year 11. From an early age you were a talented tennis player and played in the Australian Open at the junior level. You were offered a scholarship to a private school as a result of your tennis talent but did not take it up.
3. When you were aged 16 you went to Germany and played professionally there for two years, and at one stage were ranked 52 in the world as a junior. You then came back to Australia and worked in construction, as well as tennis coaching and in sports stores. When aged around 20 you joined the professional tour. Due to injuries you were not successful in that endeavour and when you were aged approximately 23, you ceased that.

1. At that point you met a young woman in England and became married. You then were involved in small scale property development in England. Through no fault of either party the marriage broke down and at age 28 you returned to Australia. At that point you started working in tennis coaching at private schools. As well you acted as an individual coach for a promising young female junior player. Subsequently you went into business with one of your older brothers. Unfortunately this construction business collapsed leaving you with a significant debt.
2. Notwithstanding the debt you worked as a tennis coach, as well is working in a café. At that point you were living with one of your sisters, Linda, who gave evidence in support of you. About two years ago you met a woman, Harvi Bramdman. You have been acting as the father to her two young teenage sons and you get on very well with them. Ms Bramdman gave evidence in support of you on the plea. Both she and your sister have been visiting you in custody and both will be there to support you upon your release.
3. In his written submissions, your counsel emphasised a number matters and I have taken them into account. First he submitted that until mid-2014 you have been a person of good character. You are entitled to the benefit of that. He tendered a reference from a charity where you had provided free tennis coaching for a period of 18 months or so.
4. The emphasis on the plea was that subsequent to the breakup of the partnership with your brother, you started using ice and that your offending covered this relatively narrow period of your life when you were involved in the grip of ice addiction. He emphasised that your prior good character, and the relatively narrow period over which you had been offending, bodes well for your prospects of rehabilitation.
5. He also emphasised that you have pleaded guilty at the first opportunity. You are entitled to the utilitarian benefit of an early plea of guilty. You cooperated with the police when you were arrested and you are entitled to the benefit of that. I am satisfied that your plea of guilty is also evidence of your remorse, which is also attested to by the evidence of your sister, Linda, and

6. Your insight into your offending by virtue of your plea of guilty and your remorse is an important consideration in considering your prospects of rehabilitation. On the plea evidence was led from your sister, Linda Datolli. In 2012 you had come to live with her and she found you a very hard worker who provided assistance for her young daughter. She referred to the fact that there had been a difference or dispute between you and your parents after the collapse of the business with your brother, and then in 2014 you received a major tax bill which has had a significant impact on you. At that point you moved out and it was then that you fell into drug use. In evidence was an outstanding account from the ATO for some $578,000, said to be owed arising out of the business with your brother.
7. When arrested for drug dealing on 2 November, you explained that it was to obtain money for your upcoming court appearance and you had given the same similar explanation when arrested in June.
8. Also on the plea Ms Bramdman gave evidence. She is a professional woman and a dual Australian and Israeli citizen. You have acted as a parent to her teenage sons and she too noticed a change in your behaviour in about 2014. She became aware that you were involved in drugs and you then left the household. Since your arrest she has continued to support you and has found you remorseful for your conduct. She is of the opinion that you need rehabilitation and she will seek to assist you with that.
9. Your counsel emphasised that you are serving your first term of imprisonment and that this will in itself will have a significant deterrent effect on you. Given your age and your prior good character, and the addiction which is at the centre of your offending, I accept that you are to be distinguished from recidivist drug offenders that are often seen in these courts. That again would support my conclusion that I regard your prospects of rehabilitation as good. This is notwithstanding the fact that after a period of remand after your arrest on 4 November 2014, and being dealt with by the magistrate on

20 November, you immediately relapsed into offending six days later that brought you before this court.

1. 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 victim, 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.
2. It has been said many times that the sentences of the courts for drug offending, particularly drug trafficking, must seek to send a signal to those minded to attempt to make money selling illegal drugs, that it will be met by heavy punishment. Parliament has adopted a quantity based sentencing regime and imposed a significant maximum penalty of 25 years' imprisonment for the principal offence of which you have pleaded guilty.
3. I am required to sentence you in accordance with current sentencing practices, but as indicated on the plea, this is difficult given changes in the sentencing regime following the case of Boulton and the fact that it is only a relatively short time since Butanediol has been a prohibited drug.

1. The learned Crown prosecutor emphasised general deterrence, specific deterrence and denunciation. He emphasised that specific deterrence is relevant here due to your offending immediately after being released from custody and dealt with by a Magistrate for a similar offending. Counsel emphasised the protection of the community. I accept the submission. However, it is well known that the struggle to throw off drug addiction is often a bumpy road.
2. Mr Hartnett, in his submissions, emphasised your prospects of rehabilitation, which I've already addressed, issues of totality and the fact that you are serving your first sentence of imprisonment. He accepted that a term of imprisonment was the only available sentencing option.
3. You have now been in custody since 4 November 2014, save for a period of six days when you were released upon appeal bail. You have yet to complete the sentence imposed by the learned Magistrate, which came into effect when you abandoned your appeal against the sentence on 10 February this year.
4. The issue of totality is important, given that the sentence which you are currently serving, and the sentence that I about to impose, are both related to drug addiction. At the same time the rehabilitative and deterrent effect of a term of imprisonment on a mature person, who has never previously served a term of imprisonment, remains to be seen.
5. I am required to fix a non-parole period. This is the minimum period that you are required to serve to meet all the ends of sentencing. In this case, in fixing a non-parole period, I regard it as appropriate to take into account the entire period that you have been in custody to the present time. I regard it as appropriate to provide for a longer than usual period for which you will be eligible for parole, given what I regard as your good prospects of rehabilitation, and the fact that you have not been previously served a term of imprisonment for a drug-related offence.
6. It is in the community interest that you have the opportunity to serve a significant part of your sentence in the community with appropriate support, to see whether you will be able to address your drug habit following a period of enforced non-availability while in custody. Having taken into account all the matters put on your behalf I sentence you as follows.
7. Could you please stand?

1. On the count of trafficking in a commercial quantity of 1,4-Butanediol, you are sentenced to three years and three months imprisonment. On the count of trafficking in a drug dependence, methylamphetamine, you are sentenced to 15 months' imprisonment. On the summary charge of dealing with property suspected of being proceeds of crime, you are sentenced to one month imprisonment. On the charge of driving whilst disqualified you are sentenced to 14 days' imprisonment.
2. As the offending effectively involved a course of conduct on a single day, I propose to make all sentences concurrent.
3. I fix a non-parole period of 18 months.
4. I declare that you have served 78 days pre-sentence detention.
5. Pursuant to s.6AAA, I declare that had you not pleaded guilty I would have imposed a head sentence of four years with a non-parole period of two years.
6. Anything else, Mr Pickering?
7. MR PICKERING: Your Honour, not with regard to the sentence itself. Your Honour, you may be aware that there was contact with the Court, and also with my instructor, from a gentleman called Milton Wallace regarding the Range Rover.
8. HIS HONOUR: Yes.
9. MR PICKERING: The letter that's been provided by your Associate says that "I, Milton Wallace, being interested party in vehicle Range Rover YLF464, wish to defend and oppose the application for forfeiture order for this property". Mr Wallace is not actually here but, at the same time, he has notified the court he has an interest.
10. HIS HONOUR: Yes.
11. MR PICKERING: The options are essentially that the order be made with the Range Rover deleted from it and we simply deal with what was left in the property. That would be the cash, the mobile phone alone, and then we simply adjourn off the issue of the Range Rover to a later date. I understand Your Honour's going on circuit shortly.
12. HIS HONOUR: Three weeks.
13. MR PICKERING: The alternative would be to simply make the order in his absence, simply because he's not here and hasn't done anything about it. I'm in Your Honour's hands on that.
14. HIS HONOUR: What's the legal position? If he's lent the car to someone who's using it as an instrument of crime, is it tough for him or not?
15. MR PICKERING: In effect he would have to show that he's not involved in it, Your Honour, and that the car was "I lent it to my friend that day and I didn't know he was drug trafficking", to put it colloquially. He would have to show that he has an interest. The complicating factor is that the police checks indicate this is registered to a defunct company so I don't know what his interest is.
16. HIS HONOUR: Yes.
17. MR PICKERING: So certainly he would be able to make a claim that it not be forfeited and that he has an interest, and then it would be a different issue. It doesn't involve the prisoner obviously but, given that he's not here, we can't really elaborate on it.
18. HIS HONOUR: How did he know? Did he know that it was sentencing today, did he? He must have.
19. MR PICKERING: He was notified last week, Your Honour, and he's previously been in contact with the informant some months ago, when we had the committal. He'd been in contact but, again, nothing directly to indicate what his interest is.
20. HIS HONOUR: Where's the car? In the police yard?
21. MR PICKERING: Yes. Obviously there's an interest for the matter to be finalised but given that he's sent this only yesterday, he probably needs an opportunity to at least say what he wants to say about it before we get to the stage of whether he wants to make an opposition to forfeiting it.
22. HIS HONOUR: Yes What about I make a conditional order?
23. MR PICKERING: I don't know that Your Honour can make a conditional forfeiture under the Confiscation Act**.** An alternative, Your Honour, might be that it be adjourned to a date to be fixed and then it can be brought back before you when you return from circuit, if in effect nothing's happened.
24. HIS HONOUR: It should be dealt with pretty quickly but the longer the car is sitting in the police yard it's probably costing storage costs, depreciating of its value, getting unregistered. You name it.
25. MR PICKERING: When does Your Honour go on circuit?
26. HIS HONOUR: Twenty-fourth.
27. MR PICKERING: Twenty-fourth of September?
28. HIS HONOUR: Yes. We've got three weeks.
29. MR PICKERING: Yes. Perhaps, Your Honour, it can be listed for mention, say, next week and he can be notified to at least attend. I'm just trying to think of commitments for next week, Your Honour, but would Your Honour be willing to simply list it for mention at, say, a 9.30 listing at some point next week? He can be told to attend.
30. HIS HONOUR: Yes, you name the date.
31. MR PICKERING: As usual, Your Honour, it's all very busy next week but I made the mistake of agreeing to go on holidays. Perhaps Wednesday next week, Your Honour, the 2nd at 9.30.
32. HIS HONOUR: All right.
33. MR PICKERING: If it could just be listed and he can be told to attend or not attend and we can deal with it then.
34. HIS HONOUR: Yes.
35. MR PICKERING: If Your Honour pleases.
36. HIS HONOUR: We'll list the matter of the forfeiture.
37. MR PICKERING: Yes.
38. HIS HONOUR: Because the mobile phone was not even referred to in the summary. Presumably you seized that when you were arrested.
39. MR PICKERING: That's correct, Your Honour.
40. HIS HONOUR: Thank you.
41. MR PICKERING: If Your Honour pleases.
42. HIS HONOUR: Thank you. Thank you, Mr Cole, for your attendance. We'll list the matter for mention next Wednesday on the forfeiture issue and otherwise, I'll just stand down temporarily.