R v Benedetti [2009] VSC 8

2 You are now 43 years of age. You were between 40 to 41 years of age at the time of the commission of the offences having been born on 2 January 1966. You have pleaded guilty to Counts 1 and 2 on the basis that you were the supplier of a commercial quantity of cocaine being in excess of 500 grams to a large illicit drug trafficking enterprise which was known as the company. You also supplied methylamphetamine to the company in a quantity that was less than 1.25 kilograms.

3 In relation to Count 1, the trafficking of a commercial quantity of cocaine at Melbourne between 1 April 2006 and 5 June 2007, at the time of the offending you were working in a motor mechanic business and you were a member of the same gymnasium as some of the members of the company, being Mansour, Rizzo and Ferraro. From my understanding that was how you met and became involved with this group, you conducted the transactions either using your business premises or the gymnasium.

4 In relation to Count 1, the trafficking of cocaine in respect of the company, that was conducted on behalf of the company almost exclusively by Rizzo, wherein he would purchase cocaine from you and then on-sell it to others. Between April 2006 and June of 2007 you supplied Rizzo with in excess of 500 grams of cocaine. The vast majority of this cocaine was purchased by Rizzo on behalf of the company. The remainder was acquired by Rizzo in what was described as his personal side business. The company would pay you between $7,000 and $8,000 per ounce for cocaine.

5 Rizzo, after cutting the cocaine, with the assistance of Ferraro would on-sell the cocaine again for approximately $8,000 an ounce. Ferarro also assisted in the sale of the cocaine. Rizzo kept company accounts in respect of the purchase and sale of the cocaine.

6 The Crown listed some examples of cocaine transactions which included the following. First, the purchase of one ounce of cocaine by the police informer 3030 and Rizzo from Benedetti for $8,000 on 23 May 2007. 3030 passed the cocaine onto the police and also paid for it with money provided to him by the police. When it was analysed it was found to be 28 grams of cocaine with a 60% purity.

7 Secondly, the purchase of 2 ounces of cocaine by police covert operative Dale from Rizzo for $16,000 on 30 May 2007 which, when analysed, was found to be 56 grams of cocaine with 60% purity. You also sold cocaine to others apart from Rizzo.

8 On the day of your arrest at your premises at 5 Annan Street, Templestowe the police located various items including numerous mobile telephones, two plastic bags containing white powder which, when analysed, were found to be 6.7 grams of cocaine and the second to be 0.5 grams of cocaine in a spare bedroom. Also in the spare bedroom were two plastic bags containing 0.9 grams of methylamphetamine and a second bag which contained 0.7 grams of methylamphetamine. Two further plastic bags containing traces of cocaine were in the spare bedroom; a set of digital scales; an unregistered dismantled Norica Model 56 air-rifle which was unsecured on a workbench in the garage and an unregistered Breda make sterling model 12 gage double barrel shotgun which was secured within a gun safe.

9 Also located in the house in the main bedroom was a safe. In that safe there were bundles of cash. There was $8,000 and another bundle of $20,200, a further bundle of $60,000 of which $7,200 had come from the cash money paid by the police for the purchase of drugs on May 23 and May 30 2007 and a further bundle of $18,000 cash.

10 In relation to your business premises which were located in Manningham Road, Bulleen, there was located a jet-ski which belonged to Rizzo and a Dell laptop computer with documents on the computer showing internet inquiries regarding cocaine.

11 The police also searched your mother's premises at 4 Outlook Drive, Doncaster where they located one unregistered 9 mm SIG-Sauer P 226 handgun in a black case. Three pistol magazines and four boxes of 9 mm ammunition in an unsecured cupboard.

12 In your interview with the police on 5 and 6 June 2007, you admitted knowledge of $80,000-odd cash being in the safe at your residence at Templestowe and said that it was your money. Although in respect to those same questions later you made no comment.

13 You admitted that the plastic bags with various drugs in them belonged to you and that they were for your own personal use. You told police that the jet-ski located in the garage belonged to Rizzo and that you were looking after it whilst Rizzo repaired his garage. In relation to the longarm found at your Templestowe residence you made no comment.

14 In respect of Count 2: trafficking in methylamphetamine at Melbourne between 1 April 2006 and 5 June 2007, there was a small amount of methylamphetamine provided to the company by you through Rizzo and 3030. The Crown described the total quantity of methylamphetamine having been supplied by you to the company during the trafficking period as significantly less than 1.25 kilograms. Your involvement at that stage is that you were offering samples with costings to the company of you supplying pound lots of methylamphetamine. This was done by you in an endeavour to create business in respect of your drug trafficking, by diversifying from cocaine into methylamphetamine. In addition, when the police executed search warrants at the various locations on 5 June 2007 they located, as I referred to earlier, two small quantities of methylamphetamine in the spare bedroom, being 0.9 and 0.7 grams respectively.

15 Counts 3 and 4 relating to the possession of unregistered longarms by a non-prohibited person, relate to the two unregistered firearms found at your premises at Templestowe to which I have earlier referred.

16 In relation to the summary charges, when you were interviewed by the police on 5 June you admitted that you had a 9 mm handgun in a bag in a cupboard at your mother's house which was not properly secured in a safe as required by law. You told the police you were registered to possess the 9 mm handgun and that you used it for sporting shooting.

17 You have no prior convictions and are entitled to be considered a person of good character prior to these offences. In relation to the offences to which you have pleaded guilty, the trafficking in a commercial quantity of cocaine has a maximum penalty of 25 years imprisonment; the trafficking of methylamphetamine has a maximum of 15 years imprisonment; the possession of the unregistered longarm by a non-registered person is two years imprisonment or 120 penalty units; failing to store a longarm correctly is 12 months imprisonment or 60 penalty units; and failing to store cartridge ammunition correctly is two years imprisonment or 120 penalty units.

18 It is accepted that you entered your plea of guilty at an early time.

19 I am dealing with the summary offences pursuant to s 359AA of the Crimes Act.

20 Whilst I have made reference to the company in these remarks, as has the prosecutor in her opening, you are not being sentenced upon the basis that you were knowingly involved with "A" whilst he was a fugitive from justice. You were supplying to Rizzo and 3030. I have no material before me to indicate that you had any knowledge or awareness of the part they played within the company overall, although there is material as indicated that you were attempting to expand into the supply of methylamphetamine to these same persons, but the amount involved in that trafficking, according to the prosecutor, was between 14 to 16 grams of methylamphetamine.

21 I have to take into account your personal circumstances and background which I will deal with briefly. You are one of five children. You have a twin sister and two surviving brothers, another brother having been killed whilst you were still in primary school, which clearly caused you a great deal of grief. Your father died when you were aged 22, once again, that, according to the psychologist Mr Newton, caused you considerable grief. You attended both local primary and secondary schools and had an incident free childhood and schooling. Clearly your parents were loving and warm. At the completion of Year 11 you took up an apprenticeship as a motor mechanic which you successfully completed and you have subsequently run a number of businesses in the automotive field quite successfully.

22 In 1990 you met your wife Susan Benedetti and you married in 1993. You have two children, Daniel aged approximately 11 and Nicholas aged approximately 6. Your wife works as a legal secretary and earns a substantial income from that employment. You have between you acquired not only your marital home but two investment properties; one in Ringwood which was acquired approximately four years ago and a property in Surfers Paradise acquired approximately 10 years earlier. You and your wife had a happy successful marriage up until the time of the arrival of your second child. At that stage it was determined that you would sell the business, which was an UltraTune business so that there could be more family time spent together.

23 Initially you began attending at the gymnasium as part of a fitness and general health regime, but over a period of time you increased the time spent at the gym and that caused a lot of problems in the marriage. Your wife described you as attending the gym sometimes five nights a week for periods ranging from an hour-and-a-half to two hours, arriving home between 9.30 and 10 o'clock. She said that prior to your separation, which was around November of 2005, she noticed that you were getting bigger in your physical appearance and your moods were increasingly more erratic. She described you as being a person who is normally quite timid and shy but that you had become aggressive in your nature. She believed that at that stage you were using steroids as you were getting so much bigger physically together with your irrational behaviour. She had asked you to cut down on attending at the gym or at least attend at the gym in the morning so that it did not impede upon family time, but you refused and said that you were going to keep going to the gym at the hours that you wished. That put a large strain on the relationship and eventually you separated.

24 You went and lived with your mother during this period of separation. In her contact with you your wife found that you were very aggressive and you were quite hostile towards her as a result of her suspicions as to your taking of steroids. She noticed that you had changed in terms of not only your physical appearance but your clothing. She said that all of a sudden you had taken to wearing snakeskin shoes, shiny pants and jewellery, whereas previously you would be a person, as a motor mechanic, who would be mainly wearing tracksuits. She said, in evidence, that you were separated for some 12 months and for most of the time the relationship was quite strained. But towards the end of the separation period she described your demeanour as changing back to the person that she knew and you appeared to be trying very hard to come back to the relationship. She said that you reconciled approximately three months prior to your arrest. Your wife has stood by you whilst you have been in prison and has indicated as a result of the changes she has observed in you both prior to your arrest and subsequent to your arrest that she intends to continue to stand by and assist you in any way she can to maintain a drug free life.

25 You reported to Mr Patrick Newton a psychologist as to your substance use over the period of time in the following terms (at paragraph 20):

Mr Benedetti reported that his drinking had been moderate and that as a teenager and young adult he had been opposed to illicit drug use. He did not begin to experiment with illicit substances until approximately 2004 when he was introduced to the use of cocaine and other stimulants by an associate. Mr Benedetti told me his initial motivation for using these drugs had been to assist him to cope with work demands. He found that they boosted his energy levels providing the increased energy he needed to meet his deadlines. This pattern became part of his general routine. He told me that while he had managed to maintain his work output his relationship had suffered significant strains. As the inevitable processes of tolerance developed he found that he needed an increasing amount of the drugs to obtain the effect he desired and his use escalated steadily. In turn the difficulties in his marriage were multiplied which intensified his stress and led to further drug use.

Mr Benedetti told me that his use had escalated markedly after his separation from his wife. He said that stimulant use had been endemic to the culture of the social activities that he engaged in after the separation. Furthermore as the true significance of the loss of his marriage dawned upon him and he experienced the resultant grief he turned increasingly to stimulants to elevate his mood and relieve the depression he was experiencing. Mr Benedetti told me that he engaged in daily use of stimulants during 2006. He described clear symptoms of tolerance to them and added that he had experienced withdrawal when he reduced his intake or abstained.

Mr Benedetti said that when his hopes of reconciliation with his wife had increased in late 2006 he had begun to reduce his consumption of the drugs. He acknowledged however that he was still using on a regular basis until his arrest and placement on remand. Mr Benedetti was adamant that despite opportunities he has not consumed any illicit drugs since being placed on remand. He has completed a number of drug education courses whilst on remand and has also been subject to random urine testing.

By way of background, Mr Benedetti told me that his offending had been committed during the time when his drug use was at its peak.

26 Mr Newton diagnosed you as having a major depressive disorder in remission and he referred to a number of, what he described as, depressive incidents. The first being a response to the death of your brother when you were at primary school, your father's death when you were 22 and it was described as noteworthy depression. But equally Mr Newton found that each had been within the normal spectrum of grief given your age and stage of development. He relied on a second further depressive episode in the period following your separation from your wife in 2004. He stated that your reported symptoms were consistent with a major depressive episode and that you resorted to the use of stimulants to elevate your mood and relieve your symptoms of depression and, finally, what he described as a further reactive depressive episode after your remand on these charges. He said that that was on-going when he assessed you in March of 2008.

27 You have been treated with a variety of antidepressants and have participated in counselling and your condition, he described, has now stabilised.

28 Mr Newton reported at paragraph 25 of his report on what he described as substance related matters:

Based on a review of Mr Benedetti's history it is clear that he suffered from a significant addiction to cocaine and other stimulants from at least 2004 until his arrest in April 2007. Not only did he report typical physical signs of addiction but his drug use had become a central feature of his life to the detriment of most other activities. His addiction was compulsive and he relied on stimulants to maintain his work performance and to cope with his symptoms of depression after the breakdown of his marriage. Thus his addiction was maintained not only by physiological factors such as tolerance and withdrawal but also by significant psychological issues.

29 I find this difficult to reconcile with the evidence given by your wife, which is that in February of 2007, some four months before your arrest, you reconciled and returned to the family home. She indicated that if she believed you were still using any form of illegal substance there would have been no reconciliation. She said you were back to the person that she had married. That is that your personality and your behaviour had moderated back to the person who was quiet, not involved in partying and behaving in a manner inconsistent with being a serious addicted person.

30 I accept that you had a period of time in which you used cocaine, and possibly substantial amounts of cocaine. I do not accept that the purpose of the trafficking in cocaine was to maintain your supply of cocaine and therefore a basis of need rather than greed. You have provided no information to the police or to the authorities on how you became involved in selling cocaine, from whom you received the cocaine, or what happened in respect of any of the money that you made from the sale of that cocaine. Whilst you are not obliged to do so, it does not assist you when I am determining your level of remorse for your involvement.

31 Since you have been in custody you have engaged in almost every drug course available to a person in your position. You have written to a number of organisations offering your assistance in talking to young people about the dangers of drugs and you have indicated that you intend, if possible, to become a drug counsellor upon your release from prison.

32 I accept that you are to a degree, quite remorseful about your involvement. That you are a person who regrets becoming involved and placing yourself and your family's happiness in jeopardy. I am not however satisfied that all of the trafficking in which you were involved was done whilst you were a person who was addicted to cocaine and I find as matter of fact that your motivation was greed rather than need.

33 I have been provided with many references on your behalf. They speak of a good and decent man, a caring individual, a devoted family man and it is clear that for the majority of your life that is precisely what you have been; hard working, industrious, caring, loyal and law abiding. However, your behaviour in respect of the sale of cocaine went on for a period of 14 months. That is a lengthy period. You did not supply a great deal of cocaine within that time. It was at least 500 grams and up to one kilo. I am unable to determine the precise amount but I am able to say that it was within that range. It is not at a high level of commercial quantity trafficking in terms of the quantity involved, but the period over which it took place was, as I indicated, substantial. In fact on the day prior to your arrest you were involved in a transaction with Mr Rizzo indicating that you were not in the process of ceasing any involvement.

34 You are not to be punished for the fact that Mr Rizzo was involved in 'the company', but you are to be punished for not only supplying the cocaine that you did, but for trafficking the smaller quantity of methylamphetamine with the clear intention of attempting to expand your level of trafficking and money making activity.

35 There is a clear need to take into account the issue of general deterrence, as the parliament has by the maximum sentence it has established for offences of this nature indicated that criminal behaviour of this type is regarded very seriously. In respect of personal deterrence, that has relevance, but can be moderated by the remorse I accept that you have, and by my view of your prospects of rehabilitation, which I find to be reasonably good.

36 You have the support of your family and your community, there are people willing to employ you upon your release, you have children who you care about, and you spent so many of your previous years as a law abiding citizen, that in my view that combination is such as to make your prospects for rehabilitation reasonably good.

37 I am required to consider and balance all of those matters to which I have referred, including your plea of guilty, the early stage at which it was made, your personal circumstances, your lack of criminal history and the need to impose a just and appropriate sentence, incorporating aspects of both general and specific deterrence, and totality, when determining the appropriate sentence to be passed in your case.

Count 1 - trafficking in a commercial quantity of cocaine - you are convicted and sentenced to be imprisoned for a period of 3 years and 3 months.

Count 2 - trafficking in methylamphetamine - you are convicted and sentenced to be imprisoned for a period of 18 months.

Count 3 - possession of an unregistered category A longarm by a non-prohibited person - you are convicted and sentenced to one month's imprisonment.

Count 4 - possession of an unregistered category A longarm by a non-prohibited person - you are convicted and sentenced to one month's imprisonment.

39 In respect of the summary offences to which you have pleaded guilty; being one of failing to store a category A or B longarm correctly, one of failing to store a handgun correctly and one of failing to store cartridge and ammunition correctly. You are convicted and fined 10 penalty units in respect of each of those offences.

40 Count 1 is the base sentence and I direct that you are to serve 9 months of the sentence imposed upon Count 2 cumulative upon the sentence imposed on Count 1, and that Count 3 is to be served concurrently with the sentence imposed on Counts 1 and 2, making an effective overall sentence of 4 years' imprisonment. I further direct that you are to serve a minimum of 2 years and 4 months before becoming eligible for parole.

41 I declare that you have served 615 days in pre-sentence detention and that such be noted in the records of the court.

42 I make the forfeiture orders as sought by the Crown, and an order pursuant to s 464ZF(2).