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DPP v Donato [2022] VCC 1053 (15 July 2022)

Last Updated: 15 July 2022

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02531

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHELE DONATO

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JUDGE:	His Honour Judge Rozen
WHERE HELD:	Melbourne
DATE OF HEARING:	7 and 20 June 2022, 7 July 2022
DATE OF SENTENCE:	15 July 2022
CASE MAY BE CITED AS:	DPP v Donato
MEDIUM NEUTRAL CITATION:	[2022] VCC 1053

REASONS FOR SENTENCE
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Subject: Possession of a drug of dependence; dealing with property reasonably suspected of being the proceeds of crime

Catchwords: Sentence – Punitive and rehabilitative purposes – low risk of re-offending - Community Correction Order for resident of South Australia – lack of reciprocal arrangements

Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).

Cases Cited: Ashton v The Queen [2010] VSCA 329; Boulton v The Queen [2014] VSCA 342; R v Lam [2005] VSC 495.

Sentence: 2 year Community Correction Order with conditions

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Pickering	Office of Public Prosecutions

For the Accused	Mr C. Mandy SC	Melasecca Kelly & Zayler Barristers and Solicitors

HIS HONOUR:

Michele Donato, you have pleaded guilty to:

(a) One charge of possession of a drug of dependence contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic); and
(b) One charge of dealing with property reasonably suspected of being the proceeds of crime contrary to s 195 of the Crimes Act 1958 (Vic).

The possession charge, which is indictable, carries a maximum penalty of 30 penalty units or imprisonment for 1 year; the dealing with property charge, which is a summary offence, carries a maximum penalty of 2 years’ imprisonment.

Circumstances of offending and arrest

The following summary of your offending is drawn from the Summary of Prosecution Opening dated 6 May 2022 which is an agreed document,^[1] and further facts which emerged during the course of the plea and are agreed.
In December 2020, you were working in South Australia as a driver for Fine Foods of Adelaide. You were driving a 2012 Mitsubishi Canter truck registration S699AUB registered to ‘Paul Thip Pty Ltd’. Your counsel, Mr Mandy SC accepted during the hearing on 7 June 2022 that you owned the truck and I so find.
You drove your truck from South Australia to Victoria on 29 December 2020. You were observed by police who intercepted your vehicle at 9.38 pm in South Melbourne. They informed you that they had a warrant issued under the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and that your vehicle was to be searched.
In response to being asked by police if there was anything in the truck, you told them you had personal stuff in the cabin and pointed to your nose. When you were asked what this meant, you said ‘Coke’. You were arrested and taken to City West police station.
Your truck was then searched by police. The search revealed:

(a) two plastic containers and a small box which contained cocaine; and
(b) two large pallets of coffee products including coffee pods.

Police also removed screws in the wall separating the rear of your truck from the driver’s cabin where they found 11 brown cardboard boxes stacked up. Each was sealed with tape and labelled ‘Inghams Frozen Poultry’. Each box contained a large amount of Australian currency. The boxes contained between $250,150 and $500,320. The total amount of cash in the boxes was $5,251,590 (summary charge 4, dealing with property reasonably suspected to be proceeds of crime).
The drugs found in your truck were analysed and found to be 4.7g of cocaine, with a purity of between 66% and 80%. (charge 1, possession of cocaine).
You were interviewed by police and, apart from admitting that you drove the truck, made ‘no comment’.
You were remanded in custody but released shortly thereafter on bail. Because of a delay in formalising your bail, you spent 5 days in custody before you were released in early January 2021.

Maximum penalties and objective seriousness

The maximum penalty for the offence of possession of a drug of dependence varies according to whether the person charged possesses the drug for personal use or for ‘any purpose relating to trafficking in that drug of dependence’. In the first situation the maximum penalty is imprisonment for 1 year; in the latter situation it is five years’ imprisonment.^[2]
For the lower maximum to apply, the court must be satisfied on the balance of probabilities that ‘the offence was not committed for any purpose relating to trafficking in that drug of dependence’.^[3]
Further, where a person has in their possession a drug of dependence in a quantity that is not less than the traffickable quantity, possession of that drug in that quantity ‘is prima facie evidence of trafficking by that person in that drug...’.^[4]
As cocaine is a drug of dependence specified in Part 3 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), the amount of the drug you had exceeded the ‘traffickable quantity’ in relation to cocaine.^[5]
It follows that, unless the court is satisfied that possession of the cocaine by you was not for any purpose relating to trafficking, the maximum penalty is five years’ imprisonment.
It was common ground that you bear the onus of satisfying the court of this. On your behalf, Mr Mandy SC referred the court to your cocaine addiction, the relatively small quantity of the drug and its purity as evidence upon which the onus is satisfied. Mr Pickering, on behalf of the DPP, said no reliance was placed by the prosecution on s 73(2) owing to the purity and quantity of the drug.
In the circumstances, I am satisfied on the balance of probabilities that your possession was not for any purpose relating to trafficking but rather was for your personal use. Accordingly, the maximum penalty for charge 1 is 12 months’ imprisonment.
The maximum penalty for the offence of dealing with property reasonably suspected of being the proceeds of crime is two years’ imprisonment. The offence to which you have pleaded guilty is the least serious of a group of offences punishing those who deal with the proceeds of crime.^[6]
The most serious of these offences applies where the person knows they are dealing with the proceeds of crime and intends to conceal that fact. That offence attracts a maximum penalty of 20 years’ imprisonment.^[7] A person who deals with the proceeds of crime knowing that it is the proceeds of crime is guilty of an offence that attracts a maximum penalty of 15 years’ imprisonment.^[8] If the person is reckless as to whether or not the property is proceeds of crime the maximum penalty will be 10 years’ imprisonment.^[9] Finally, if the person is negligent as to whether the property is proceeds of crime, the maximum penalty will be 5 years imprisonment.^[10] You have not been charged with any of these more serious offences.
By contrast, the offence to which you have pleaded guilty requires no actual knowledge of wrongdoing on the part of the accused. It merely requires that the property ‘dealt with’ by the accused was ‘reasonably suspected’ to be the proceeds of crime.
It is not part of the case against you that you were actually aware of the money hidden in your truck, let alone that you knew that there was over $5 million. I will discuss the significance of this for sentencing you in due course.
For the purposes of this offence, the expression ‘deal with’ includes ‘possess’.^[11] It is your possession of the money in the sense of having it in your truck that is the basis upon which you have pleaded guilty. There is no evidence before the court to explain how the money came to be hidden in your truck. There is certainly no evidence to demonstrate that you played any role in hiding the money in your truck. Had you played any such role, you may well have faced one of the more serious charges to which I have earlier referred. In those circumstances, the sentence the court would impose on you would also be likely to have been more severe.
I note that it is a fundamental principle of law that a sentencing court may not consider facts adverse to an offender unless they have been established beyond a reasonable doubt.^[12] I therefore sentence you on the basis advanced by your counsel and accepted by the prosecution – that you did not know that there was money hidden behind the false wall of your truck but that you were aware that it was likely that something unlawful was being delivered by you to Melbourne.

Nature and gravity of the offences

As noted earlier, you have pleaded guilty to possessing an amount of cocaine that exceeds the ‘traffickable quantity’ of 3 grams. This is a not insignificant amount of this drug of dependence.
In relation to the dealing with property charge, I accept the prosecution’s submission that yours is a serious example of the offence against s 195 of the Crimes Act 1958 (Vic). The principal reason for this is the amount of money involved – in excess of $5,000,000. There are other aspects of this offending that also contribute to my assessment. It was your truck that was used to transport the money and you were aware of the existence of the false wall behind which the money was hidden. You knew that the people who asked you to drive to Melbourne were drug dealers because they were providing your cocaine at cost price in return for your transport services.

Personal background and psychological assessment

Your counsel relied at the plea hearing on a report from Mr Luke Armstrong, consultant psychologist, dated 27 May 2022.^[13] The following information is drawn from that report.
You are 49 years of age and your parents migrated to Australia when you were 7 years old. Your father was very controlling and could be violent. However, your mother was very kind. Sadly, she died in a car accident when you were 27 years old.
You started experimenting with cannabis at the age of 13 and were using it daily by the time you were 19.
You married your wife Nadia at the age of 19 and you remain married having raised two sons in South Australia.
You tried your hand at a number of businesses including a shopfitting business when you were about 40. However, each business failed leaving you with what Mr Armstrong describes as ‘an overwhelming sense of failure’. Cocaine use helped to counter your fluctuating moods.
In approximately 2018 you started driving trucks for a living. You also increased your use of cocaine. Your counsel described this period of your life as being ‘in the wilderness’.^[14] Mr Armstrong is of the opinion that ‘at least 3 months before your arrest [you] fulfilled many of the criterion [sic] for a Stimulant Use Disorder’.^[15] You reported to Mr Armstrong that you have not used drugs since your arrest and on that basis, and in the absence of urine analysis reports, he states that your substance abuse disorder is ‘in sustained remission’.^[16]
Overall, Mr Armstrong opines that your recovery is ‘promising’ and that you are at ‘low risk of relapse and drug related offending’. The basis for this opinion includes that you can make the link between your drug behaviour and your arrest and that you are motivated to remain clean because you recognise that you nearly lost your family. Further, your wife and family are supportive of your recovery and this is a protective factor for you.
Mr Armstrong considers that you would benefit from 6 to 12 months of psychological treatment. He is concerned that you will not receive the mental health treatment you need if you are imprisoned.
You do not come before the court as a first time offender. However, your criminal record is relatively insignificant for present purposes. You have one drug-related matter which saw you sentenced to a non-conviction bond in 2019 in Adelaide.
The court received two character references about you. Dario Fontanarosa, in a reference dated 19 May 2022 has known you for 20 years, is aware of the charges you face and describes you as a hardworking family man and refers to the work you and your wife do for the less fortunate and homeless members of society.^[17] In a reference dated 18 May 2022, Paul Geracitano says that he has known you for 14 years and his company has employed you for that time.^[18] He states that he will continue to employ you and that your offending is ‘extremely out of character’.
I have taken the report of Mr Armstrong and the character references into account.

Matters of mitigation

I take into account in mitigation of your sentence that you have pleaded guilty at an early time. There was no committal hearing and the matter proceeded by way of a straight hand up brief.
Your plea of guilty saves the court’s time and spares the witnesses from giving evidence. There are 22 witnesses listed on the indictment.
Your plea of guilty entitles you to an additional discount on sentence due to the long delays in our court system caused by the pandemic.^[19]
I also consider that you plea of guilty is evidence of your genuine remorse about your offending.
Finally, I take into account in your favour the opinion of Mr Armstrong that your mental health concerns render you a ‘vulnerable offender’ whose mental state ‘would quickly unravel’ in a custodial setting.^[20] I have taken into account that a sentence of imprisonment would weigh more heavily on you than on a person in normal health.^[21]

Applicable sentencing considerations

I consider that the principal sentencing consideration in your case is general deterrence. I must impose a sentence on you that will deter others from engaging in drug-related crime for profit. It appears tolerably clear that the people who used you to transport the money were engaged in high level criminal activity. I note that no one else who may have been involved is presently before the court.
In addition you must be deterred from future offending. I accept that this is a less important consideration in your case because of your age, lack of serious interactions with the legal system and the strong supports available to you. I accept that your risk of re-offending is quite low.
Further, you must be punished for your offending.
One of the purposes for which a sentence may be imposed under the Sentencing Act 1991 (Vic) is to ‘establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated’.^[22] Facilitating your rehabilitation is not only in your interests and those of your family, but it is also part of this court's role in achieving crime prevention to protect the community. This is because 'crime prevention to protect the public and the rehabilitation of the offender are interlinked objectives'.^[23]
I accept, based on the material before the court, that your prospects of rehabilitation are good provided you remain drug free. You have led a largely blameless life and you are working and supporting your family.
Your counsel submitted that all of the sentencing aims in your case can be achieved through the imposition of a community correction order (CCO).
Mr Pickering, on behalf of the prosecution, submitted that a combination of a term of imprisonment plus a CCO is the appropriate outcome in this case. He submitted that your offending was too serious to avoid a custodial sentence.

Consideration

Having regard to your personal circumstances, particularly your low risk of re-offending, I accept that a CCO is able to meet all of the relevant sentencing considerations, including general deterrence and just punishment.
The purpose of a CCO is to provide a community-based sentence that may be used for a wide range of offending behaviours while having regard to and addressing the circumstances of the offender. All of the pre-conditions for imposing a CCO are met in your case.^[24]
I have had regard to the purposes of imposing a sentence as set out in s 5 of the Sentencing Act 1991 (Vic). In a case such as this, the paramount sentencing considerations are general deterrence, just punishment and rehabilitation. I must unequivocally denounce your criminal conduct.
As noted above, there is a need for the sentence I impose to be appropriately punitive. A sentence of imprisonment is the most obvious way to achieve this outcome. However, the law in this State provides that a court is not to impose a sentence of imprisonment unless the court ‘considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender’.^[25]
The punitive features of a CCO have been recognised by the Court of Appeal. In Boulton v The Queen ,^[26] the Court held that ‘a CCO has obvious punitive elements’ including:

(a) The mandatory reporting obligations;^[27]
(b) The requirement not to change address or leave Victoria without permission;
(c) The need to comply with directions given by corrections officers;
(d) That breach of the CCO is itself an offence punishable by imprisonment;^[28] and
(e) That such a contravention carries with it the prospect that the offender will be resentenced on the original offence.^[29]

In that case, the Court of Appeal also explained that a CCO ‘can be used to rehabilitate and punish simultaneously’.^[30] These purposes are generally to be achieved through an appropriate duration and a proportionate combination of conditions.^[31]
Importantly, your drug dependency can also be the subject of conditions that the Court can impose on a CCO.^[32]
Pursuant to s 8A(2) of the Sentencing Act 1991 (Vic), the Court ordered a brief pre-sentence assessment report to establish your suitability for a CCO and to obtain advice concerning the most appropriate conditions to be attached to any such CCO.^[33] The proceeding was adjourned to enable the report to be prepared.
The court received a report dated 8 June 2022 in response to this request.^[34]
The report includes the following information:

(a) You were assessed by telephone call on 7 June 2022;
(b) Your general risk of reoffending was assessed as low according to the Level of Service Risk Assessment Tool;
(c) You were assessed as unsuitable for a CCO because you reside in South Australia and may not be able to fulfil the requirements of the CCO;^[35]
(d) The Department for Correctional Services in South Australia advised that it cannot accept transfer requests from Victoria;
(e) You acknowledged the negative impact of drug use and expressed remorse for your actions; and
(f) You would be unable to fulfil the requirements of a community work condition given that you are not currently residing in Victoria.

On 20 June 2022, at the request of your counsel, I directed that a representative from the Department of Justice and Community Safety in Victoria (DJCS) be made available to give evidence in relation to the practicality of you undertaking a CCO while residing in South Australia.
The adjourned sentencing hearing resumed on 7 July 2022. On that occasion, Mr Mandy on your behalf informed the court that you were presently living and working in Melbourne and that you had a job in this State for several weeks. He further informed the court that you expected to be back in Victoria for work in the next few months.
Also on 7 July 2022, Ms Jenny Roberts, Director of Community Operations and Parole, Justice Services gave evidence that:

(a) The Department for Correctional Services in South Australia has advised that it is unable to supervise you in the event that you are sentenced to a CCO in Victoria;
(b) It is possible, but not preferred, for DJCS to supervise you remotely;
(c) You could undertake community work by travelling to Victoria when required;
(d) You could attend for supervision remotely or by travelling to Victoria when required;
(e) You would need to be assessed in order to determine whether it would be suitable for your drug treatment to be facilitated remotely;
(f) None of the core conditions are affected by you residing in South Australia, except that you would be required to seek permission to travel between Victoria and South Australia with such permission likely to be granted on an ongoing basis; and
(g) DJCS would be flexible to accommodate any issues arising with you undertaking a CCO while residing in South Australia.

I have given anxious consideration to this case. I have taken into account that you spent 5 days in prison when you were remanded. This was your first time in gaol. It is likely to have had a significant deterrent effect on you. I have considered all of the above matters, your present circumstances, the pre-sentence report and the evidence given by Ms Roberts. I also note that you have strictly complied with your bail conditions and travelled to Victoria for each hearing in your case.
In light of the evidence that the Victorian department is willing to be flexible in its oversight of you and your assessed low risk of re-offending, I have concluded that a 2 year CCO without also sentencing you to a term of imprisonment is an appropriate sentence to address both the punitive and rehabilitative aspects of the sentence, despite the lack of formal recognition of a Victorian CCO in South Australia. I have concluded that there is little to be gained for either you or the community in sending you to gaol. And sending you to gaol would be quite counter productive for your rehabilitation.
Before I ask you to consent to such an order being made, I am going to tell you a little about the order so you know what it means so please, just listen carefully to the following.
The following core conditions apply to all CCOs:

(a) You must not, during the period of the order, commit an offence punishable by imprisonment whether in or outside Victoria;
(b) You must report to and receive visits from the Secretary to the Department of Justice or her or his nominee during the period of the order;
(c) You must report to the Community Correction Centre at Melbourne by 4 pm on 19 July 2022;
(d) You must notify the Secretary, or her or his nominee, of any change of address or employment within two clear working days after that change;
(e) You must not leave Victoria, except with the permission of the Secretary to the Department of Justice or her or his nominee; and
(f) You must comply with any direction given by the Secretary or her or his nominee that is necessary for the Secretary or nominee to give to ensure you comply with the order.

Mr Donato, do you understand these requirements?
In all the circumstances and taking into account all the mitigatory matters relevant to you and the relevant sentencing considerations, including general deterrence, I consider that a CCO is the most appropriate sentence to punish you and also to facilitate your ongoing rehabilitation.

Orders

On Charge 1, possession of a drug of dependence, and the related summary charge, dealing with property suspected of being proceeds of crime, you are convicted and sentenced to a CCO of 24 months’ duration with the following conditions.

Unpaid community work

I require you to perform unpaid community work for a total of 200 hours. This is to adequately punish you. As recommended in the pre‑sentence report – because I am also imposing a treatment condition – I order that up to 60 hours that you satisfactorily undertake of treatment can be counted as hours of unpaid community work.^[36] That is, if you complete 60 hours of treatment, you will only need to complete 140 hours of unpaid community work.

Treatment and rehabilitation

The opinion of Mr Armstrong is that you have most likely been addicted to cannabis from adolescence and cocaine, despite a pattern of use from your late twenties, did not take hold until your mid-forties.^[37] In Mr Armstrong’s view, it is likely that you fulfilled many of the criteria for a Stimulant Use Disorder at least 3 months prior to your offending.^[38] You appear to be in sustained remission from your substance abuse disorder.^[39]
There is clearly a close link between your substance abuse and your offending. You made the deliveries for your drug dealers in order to buy cocaine at cost price.
In attaching the treatment and rehabilitation condition to the order, I have had regard to the need to address the underlying causes of your offending as I am required to do under s 48D(2) of Sentencing Act 1991 (Vic).
You will be required to undertake such assessment and treatment, including testing for drug abuse or dependency and alcohol use or dependency, as may be directed by the Secretary pursuant to s 48D(4) of Sentencing Act 1991 (Vic).

Other conditions

I attach a supervision condition to ensure your compliance with the CCO.^[40]
To enable the court to monitor your compliance with the CCO, I have attached a judicial monitoring condition. Because of the challenges anticipated in your undertaking a CCO while residing in South Australia, I want you to come back to me so I can assess your progress. I note that Ms Roberts endorsed such a condition.
I order you to appear and for a progress report to be provided to the court by Corrections on 14 October 2022 at 9:30AM. I will then decide what further judicial monitoring, if any, is needed.
I can only impose a CCO if you agree to such an order being imposed. I will tell you a bit about the consequences of breaching such an order now and I would like you to listen carefully, please.
If you contravene the order by not fulfilling the conditions or if you breach the order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for the breach. You can also be re-sentenced for the offences that are before me now and, of course, one of the options available would be a term of imprisonment. You have got to make sure that while you are on this order you do not commit any further offences during the term of the order that might incur a term of imprisonment, otherwise, you will almost certainly be back before the court and re-sentenced on the charges that are before me.
You also need to understand that if you fail to comply with any direction of the Secretary to the Department of Justice, being a Community Corrections officer as part of this order, a substantial fine can be imposed.
Do you understand the conditions and the consequences of breaching a CCO?
Do you consent to the order being made?
The prosecution asks the court to make Orders pursuant to s 78(1) of the Confiscation Act 1997 (Vic) forfeiting to the State a number of items taken from the truck driven by the accused when it was searched on 30 December 2019. The items are listed in a schedule to the orders that I will sign today.
I make those orders noting that they are unopposed.
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that had you pleaded not guilty to the charges and had you been found guilty of each of them after a trial, the sentence I would have imposed would have been a sentence of 6 months’ imprisonment followed by a CCO of 14 months.