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DPP v Franzini [2014] VCC 1982 (26 November 2014)

Last Updated: 15 December 2014

IN THE COUNTY COURT OF VICTORIA
Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-14-01531

DIRECTOR OF PUBLIC PROSECUTIONS

v

PATRICK FRANZINI

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JUDGE:
HER HONOUR JUDGE PATRICK
WHERE HELD:
Melbourne
DATE OF HEARING:

DATE OF SENTENCE:
26 November 2014
CASE MAY BE CITED AS:
DPP v Franzini
MEDIUM NEUTRAL CITATION:

REASONS FOR SENTENCE

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Subject:

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Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:
Counsel
Solicitors
For the DPP
Mr D. Sewell

For the Accused
Mr G. Thomas

HER HONOUR:

1 Patrick Franzini you have pleaded guilty to one charge of trafficking in a controlled drug, Charge 1, and one charge of importing a border controlled drug, Charge 2. The maximum penalty for each of these offences is 10 years' imprisonment.

2 The circumstances of your offending are set out in the Plea Summary which was tendered as Exhibit A. In brief, the circumstances were as follows. On 18 November 2012, 25 November 2012 and 25 February 2013 the authorities intercepted a parcel addressed to you. All three parcels came by post. The first parcel came from Canada and contained 2.7 grams of pure methamphetamine. The second parcel came from China and contained 100 tablets with 19.5 grams of pure 3,4-Methylenedioxymethamphetamine (MDMA). The third parcel also came from China and contained 20.5 tablets with 3.3 grams of pure 3,4-Methylenedioxymethamphetamine (MDMA). Those importations are the subject matter of Charge 2.

3 Charge 1 of trafficking is based on the importation of drugs and other evidence found on and after 19 February 2013 when police executed a search warrant at your home. Police seized unused plastic deal bags, used deal bags, electronic scales and an iPhone. One used bag contained .8 grams of pseudoephedrine. Others contained 3.3 grams of ketamine and .5 grams of N,N-dimethyltryptamine.

4 You were arrested and interviewed. You provided police with your user name and password for your Silk Road account. Silk Road is, or was, an online black market website enabling the sale and purchase of various drugs across the world. Access to your account showed it had been active in the four months before your arrest and that you had made 19 purchases of a variety of drugs in that period, for a total expenditure of $4,329.86. Examination of your phone showed numerous text messages about the use of drugs by yourself and others and the purchase and sale of drugs by you.

5 In the interview with police you admitted that you had ordered drugs for friends as a favour. You said that you were not a drug dealer and that you were using drugs in a recreational way. You said your drug use was “nothing too full-on or too serious”.

6 Annexure B to the Plea Summary includes summaries of conversations between you and others. The calls all appear to be drug-related, although with some of them it is not clear what the substance is that is being referred to. It is clear from those conversations that you were purchasing and on-selling drugs. It appears from these records that the conversations occurred on particular dates and were intermittently spaced out over the period of time that is covered by Charge 1. You are charged on that basis and Charge 1 is not a charge of trafficking of the Giretti type.

7 The contents of the conversations are consistent with you confiding about drugs to your friendship group, rather than making any attempt to find other customers. There is one reference to making a profit but I accept that profit was not your principal motivation. I accept that you were motivated by wishing to obtain drugs for yourself and your friendship group. This conclusion is supported by the evidence given by your mother that she recognised at least a number of the names of persons with whom you had the conversations as being longstanding friends of yours.

8 A report was tendered on your behalf from Dr Nicole Moriarty, clinical psychologist, dated 2 November 2014. You told Dr Moriarty that between the ages of 17 and 18 you had begun experimenting with pills, including ecstasy, and that by the age of 19½ that became a weekend ritual. You moved out of home around that time with two friends, and your house became “the party house”. During this period of time on weekends you used ecstasy, MDA, speed and for about nine months you used ice regularly. You saw the effect of that and decided to stop. You have used other drugs on other occasions.

9 You continued to work throughout this period. You told Dr Moriarty that you only took drugs on weekends because your friends started doing it and it was good fun. You moved home, back to your parents’ house, just prior to your 21st birthday, but continued to use drugs on weekends. You told Dr Moriarty that you had heard about the Silk Road website from acquaintances. You had done some research about the website and met a person who had ordered drugs and not been caught. You thought that this would be a way of getting drugs which would be safe but good quality drugs. The drugs would also be cheap.

10 Dr Moriarty says that your substance abuse would not be uncommon amongst your peers. She describes you as being naive and a person who has always had a tendency to seek fun. She says that it is likely that you are keen to be liked and please peers. My conclusion is that this tendency to want to be liked and to please your peers was the main motivation for you trafficking in the drugs.

11 In sentencing you, I have taken into account your personal circumstances. You are now 23. You grew up in a close-knit family in the Melbourne metropolitan area. Your immediate family, their partners, other family members and a friend were all in court to support you.

12 You completed Year 11 at school and then started an electrical apprenticeship. You obtained your full electrician’s licence in late 2013. You completed your apprenticeship, despite having to change employment due to business difficulties in the businesses by whom you were employed. You have had various jobs since completing your apprenticeship and have continued to work full-time throughout the period of your offending. You are now working as a fully-qualified electrician in the commercial sector. Your employer, in a letter dated 9 November 2014, confirms you employment. Your employer considers you to be hardworking, honest and trustworthy. He says that you are a valued employee. He says he is aware of the charges against you. He hopes that you will be an employee of his company for some time to come.

13 You played football and basketball during your school years. You now play indoor soccer once a week and have taken up surfing.

14 You have no prior convictions or findings of guilt.

15 It is plain from your mother’s evidence and the references provided, including a reference from your uncle who is a retired police officer, that you have a considerable amount of very strong family support. Your family were clearly shocked at the discovery of your offending but have counselled you in relation to that and are prepared to support you in the future.

16 In sentencing submissions your counsel submitted that the trafficking in which you engaged was a very low example of trafficking to friends and associates. Your counsel said that your detention in the Melbourne Custody Centre on the day of your arrest had also been an additional shock to you. He says the seriousness of this offending, and the consequences for you and your family, have now been brought home to you and you have ceased drug use.

17 Your counsel relied in mitigation on a number of matters, including:

(a) Your plea of guilty;

(b) The admissions made in your record of interview and cooperation with the police;

(c) The delay in the matter coming to court;

(d) Your youth;

(e) The motivation for your offending;

(f) Your excellent prospects of rehabilitation;

(g) The lack of sophistication in your offending;

(h) The circumstances, including the low quantity involved and the limited reward;

(i) Your work history;

(j) Family support; and

(k) Lack of any prior criminal history.

18 Your counsel submitted that an immediate sentence of imprisonment should not be imposed.

19 The prosecutor submitted that general deterrence must be an important feature in your sentence and addressed a number of the sentencing factors set out in the Crimes Act 1914. The prosecutor said that your role was that of being a sole importer, and that at least on one occasion there was discussion of the profit to be made. The prosecutor submitted that you had engaged in a course of conduct but that this is not a case where it would be submitted that an immediate custodial term would be required.

20 The prosecutor submitted that specific deterrence should have some relevance. The prosecutor referred to a number of cases of similar importation by mail. The prosecutor accepted that you would be likely to have good prospects of rehabilitation.

21 During the plea hearing I asked whether I would be able to impose a sentence of imprisonment with immediate release on a recognisance release order and the payment of a pecuniary penalty. The prosecution and defence agree that such a course is available. The maximum amount of any pecuniary penalty would be $340,000 on each charge. Your counsel has proved information as to your current financial situation. You are currently earing about $1400 per week before tax and pay about $200 per week board to your mother. You are in the process of buying a work van. You would be able to pay a pecuniary penalty by instalments of $800 per month.

22 Patrick Franzini, your offending is serious. Illegal drugs cause considerable harm in the community. You imported and bought drugs for your own use and to sell some to others. The importation of drugs through the post may be relatively unsophisticated but it is difficult to detect and it is important that the courts make it clear that such activity is both illegal and subject to severe penalties. The sale and distribution to others of illegal drugs is an evil business even if it is done within your friendship group and with limited or no profit. You were well aware that the importation, use and sale of certain drugs was illegal. It is plain from the phone conversations that you had a very immature and irresponsible attitude towards your activities. The language used suggests that you got some sort of excitement from engaging in this activity, including the interactions with your friends and acquaintances whom you sought to impress. I do take into account that the amount of drugs involved was relatively small and that your drug dealing activities were sporadic and not mainly motivated by profit. It remains important that the sentence to be imposed is sufficient to deter others from similar behaviour.

23 You are entitled to a significant discount for your plea of guilty. That plea has saved the time, expense and potential embarrassment to your friends of a trial. I accept that your plea is also an expression of your genuine remorse. Your admissions to the police and immediate co-operation support that conclusion, even though you did not appear to really appreciate the seriousness of your offending at the time of the interview. I accept that the impact of being arrested, being held in custody and going through the court process has already brought home to you the seriousness of what you were doing. I take into account that the matter has been hanging over your head for a period of time.

24 You have a very good work history and considerable family support. You are relatively young. You have no prior convictions. I consider your prospects of rehabilitation to be very good. I consider that specific deterrence need be given reduced weight in sentencing you.

25 A sentence of imprisonment on each charge is warranted for the purposes of general deterrence, just punishment, denunciation and, to a reduced degree, specific deterrence. In view of your age, I consider that it is appropriate that you be given the opportunity to demonstrate that you are able to remain in the community to continue your rehabilitation and make a positive contribution to the community. For that reason I will impose sentences of imprisonment but order your release forthwith on a recognisance release order under s. 20(1)(b) of the Crimes Act 1914 (Cth).

26 In view of the overlap and connection between the offending in the two charges the sentences are to be concurrent. Mr Franzini, could you stand up?

27 On Charge 1 you are convicted and sentenced to 12 months' imprisonment. That sentence is to commence today.

28 On Charge 2 you are convicted and sentenced to 18 months' imprisonment. That sentence is to commence today.

29 I declare that you have served one day by way of pre-sentence detention.

30 I order that you be released forthwith on a recognisance release order by giving security by recognisance of $1,000, to comply with conditions that you be of good behaviour for 18 months, and that you pay the Commonwealth a pecuniary penalty to the Commonwealth of Australia of $4,000, by instalments of $800 per month commencing on 15 December 2014.

31 Mr Franzini, I need to explain to you the consequences of breaching a recognisance release order. You must not, during the period of 18 months, commit any further breach of the law. If you do that you will be in breach of this order and will be brought back before the court.

32 Under s.20AA of the Crimes Act 1914 (Cth) you may apply to the court in certain circumstances for a discharge or variation of the terms or duration of this order. The purpose of the order, which I am required to explain, is to reflect the seriousness of the offences but also all of the mitigating factors that I have previously outlined, and to provide you with an opportunity to consolidate your rehabilitation.

33 If you fail to comply with the conditions of the recognisance release order, you may be brought back before this court, and depending on the seriousness of the breach, the court may, (a) impose a fine; or (b) extend the period of good behaviour; or (c) impose a different penalty; or (d) revoke the recognisance release order; and order that you serve the 18 months' term of imprisonment; or (e) take no action.

34 So if you are brought back to court, there are any number of things that this court might do, depending on how serious the breach was. You need to understand though, if there is a serious breach of this order, then you may well face the prospect of serving 18 months' imprisonment.

35 Pursuant to s.6AAA of the Sentencing Act 2009, I declare that but for your plea of guilty I would have sentenced you to a total effective sentence of two years and two months' imprisonment, with release on a recognisance release order after serving 14 months' imprisonment.

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