DPP v Luca (a pseudonym) [2022] VCC 1630 (14 September 2022)

Last Updated: 27 October 2022

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS
v
SEAN LUCA (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 September 2022
CASE MAY BE CITED AS:	DPP v Luca (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1630

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Criminal Procedure Act
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Doyle
For Accused	Ms J. Quan

HER HONOUR:

1. Sean Luca,^[1] you have pleaded guilty before me to one charge of possession of a trafficable quantity of firearms, and one charge of possessing a drug of dependence, namely 1,4-butanediol. You have also pleaded guilty to several summary charges which are uplifted to be heard on the plea pursuant to s145 of the Criminal Procedure Act. They are Summary Charge 15, that you deal with the proceeds of crime, being $9000 in cash; Summary Charge 16, unlicenced driving; and Summary Charge 19, again dealing with properties suspected of being the proceeds of crime, namely two false Victorian driver's licences, a false ANZ debit card, and a false Medicare card in the name of Nicholas Mueller.
2. The facts underlying your offending are as follows: on 26 August 2020, two officers from the Eastern Region Crime Squad began a covert investigation entitled Oceania into alleged trafficking activity occurring at Batesford Road, Chadstone. At the time of commencing the investigation, a co-accused
   Logan Mitchell^[2] and one Genevieve Ricardo^[3] were the only occupants living at the apartment and were in a relationship.
3. On 30 September 2020, your co-accused Logan Mitchell was arrested at Batesford Road for theft of a motor vehicle and taken to the Box Hill Police Station, where he was interviewed and a firearms prohibition order was served on him. Police returned to Batesford Road to search the premises under provisions of the firearm prohibition order for firearms or firearm related items, and eventually had to undertake a forced entry. I am referring to the prosecution opening, which seems to refer only to Mr Mitchell. Your offending relates to that of Logan Mitchell, so I will continue with the prosecution summary in relation to him in abbreviated form.
4. Police also searched the underground carpark of Batesford Road, where they found stolen vehicles and other cars. These items were seized and searched, in which were found other items, some of which were forensically examined, and DNA belonging to Mitchell located.
5. Whilst Mr Mitchell was in custody on 30 September, covert operatives were placed into cells with him, and in conversations, Mr Mitchell provided information about drugs being at his premises, and made arrangements for selling drugs to these operatives. Ultimately, those covert operatives attended on Mr Mitchell, drugs were sold, and eventually, he faced charges of trafficking in a drug of dependence.
6. As a result of these investigations by police, covert cameras were placed in the apartment, and a surveillance and optical device was fitted and installed on 24 February 2021, and live monitoring then commenced. You,
   Mr Luca, on 24 February, attended the unit, where you had conversations with Mr Mitchell, who was already present. You received a call from an unknown male, who was believed by police to be a co-accused in this matter,
   Kurt Carr.^[4]
7. There was a conversation between you and Mitchell overheard by police relating to the possession of drugs, primarily GHB. Then, there was a conversation between yourself and Mitchell which related to a gun, and the apparent sale of guns. But essentially, it was Mr Mitchell who was doing the talking about guns.
8. In any event, at about 1.43 pm, the Special Operations Group were deployed to 10 Sonia Court, Werribee which was where you were seen by police to then attend with Mitchell. You were also at the time the subject of a firearms prohibition order. When police entered, they saw Mitchell sitting on a chair inside the green garden shed at the rear of the house with a bag on his lap, its shoulder strap over his shoulder, and he appeared to be pushing something into the satchel.
9. On seeing police, you ran from the house towards the rear yard, and were seen to be wearing blue medical gloves and holding a shotgun and bolt action rifle. Both guns were black in colour. You threw the firearms over the fence into a garden shed of 11 Linda Court – which backed onto 10 Sonia Court.
10. You ran back towards Mitchell, spoke to him, and then all four co-offenders, comprising yourself, Mr Mitchell, Mr Mitchell, and one Mr Foley,^[5] ran through the backyards to escape police. Mr Mitchell tried to jump the rear face, but his satchel got caught and he fell back. You jumped into the rear fence into 11 Linda Court, where you were arrested by a member of the Special Operations Group.
11. You were taken back to the Wyndham North police station. CCTV obtained by police showed footage from Sonia Court, Werribee, showing you and Mitchell arriving there. You and Carr were seen grabbing a large black case from the rear of Mr Mitchell’s vehicle, which was then opened ultimately by police, who discovered two Adler 12-gauge shotguns, one a lever action and another straight pull bolt action with a magazine fitted, and there was another loose magazine in the case.
12. At about 4.35 pm, police searched the exterior of Sonia Court, where they discovered bags containing a 12-gauge Akkar brand sawn-off shotgun. That bag was located on the top of the garden shed roof of 11 Linda Court. A Remington .243WIN calibre bolt action rifle, black with a scope, and an empty magazine inserted, were also retrieved from the top of the garden shed. You were also searched and found to be in possession of $9000 in cash, as well as in possession of a plastic bottle containing thick liquid, which was found ultimately to be GHB, an amount of 58.8 grams, the trafficable quantity for this drug being 50 grams.
13. A Gucci satchel belonging to Mitchell was located in the backyard near the hot water service, it contained a Beretta Tomcat model handgun, loaded with a magazine in the Beretta handgun; together with a number of unrelated items belonging to Mr Mitchell.
14. In a wallet in your car were found two Victorian licences in the name of Nicholas Mueller but bearing your face, an ANZ debit card in the name of Nicholas Mueller, and a Medicare card in the name of Nicholas Mueller. Your involvement in the guns and the taking of them to Sonia Court, presumably for sale, underlies Charge 1, possession of a trafficable quantity of firearms. Your possession of the GHB underlies Charge 2 on the indictment; your possession of the $9000 underlies Summary Charge 15.
15. You were seen driving by police at a time when you had no licence; and the final summary charge relates to your possession of the false Victorian driver's licence for debit card and the Medicare card. Ultimately, you entered a plea of guilty at a committal hearing to the charges, so it can be said that this is a plea made at the earliest opportunity.
16. I now turn to your personal circumstances. You are 36 years of age. You are one of three children, born to your parents, and the first five years of your life were essentially stable. However, your mother appears to have developed a heroin habit, and ultimately, your parents divorced when you were five. Your sister went to live with your father, who worked as a roof tiler, but you and your older brother remained with your mother.
17. Your life then became very difficult. She continued with her heroin addiction; you moved around a great detail. You apparently attended about six primary schools, and your mother had a number of relationships with various men. Ultimately, when you were about 12, you went to live with your father, and your life settled and you lived a more stable life, completing Year 11— you worked in tiling and roof plumbing. You had almost completed an apprenticeship in roof plumbing when the business you were working for went under three months shy of you completing that apprenticeship.
18. Your father then moved to Tasmania, and you moved back to live with your mother. You clashed with her, and ultimately, she took out an intervention order against you. You were made redundant from your work in October 2011, and it was at this point that your life began to spin out of control. Your relationship with your then girlfriend also ended.
19. You had started using cannabis when you were aged about 16, in the context of other peers, but your ice use began when you were about 25 or 26, and it coincided with the difficult events I have described, you being made redundant, negative peers, the ending of your relationship. Then your mother developed a serious illness. Ultimately, your ice habit rose to the point where you were using about a gram a day, and then you also began using GHB.
20. I need to turn to your prior criminal history as it has a great deal to do with the sentence I am imposing on you. Your criminal record begins in 2008, when you were dealt with for driving whilst disqualified and driving with more than .05 per cent of alcohol in your bloodstream. You received a month suspended sentence for that. In 2011, you were fined $1000 for unlawful assault, failing to appear on bail, and breaching a family intervention order. In 2012, you were dealt with for relatively minor driving offences, such as driving an unregistered vehicle, and driving a car without P plates, and you were placed on an adjournment to be on good behaviour.
21. However, in 2012, the prior records show a marked descent by you into drug use and associated offending. You were dealt with in 2012 on a consolidation of charges, including possessing cartridge ammunition without a licence, possessing a prohibited weapon without excuse, escaping police custody, resisting police, possessing cannabis, handling stolen goods, possessing an unregistered handgun, possessing heroin, dealing with the proceeds of crime, failing an oral fluid test; two charges of trafficking methylamphetamine, and one charge of possessing ecstasy. You were gaoled for 12 months and fined in relation to those charges.
22. On 14 August 2014, you were dealt with again for drug use, trafficking methylamphetamine, trafficking ecstasy, possession and use of methylamphetamine; possessing a controlled weapon without excuse; possessing a dangerous article; and shoplifting. You were sentenced to four months gaol and placed on a 12 month community corrections order.
23. In April 2015, you were dealt with for breaching your community corrections order. You were also dealt with for charges of possessing methamphetamine, possessing GHB, possessing cannabis, and possessing prescription drugs, for which you were placed on a four month community corrections order. On 21 July 2015, you received 12 days' imprisonment for possessing ice and for possessing GHB. On 10 December 2015, you were gaoled for nine months for driving whilst disqualified, possessing cocaine, using cocaine, breaching an interlock condition, and exceeding .05. This was reduced to 91 days' gaol on appeal.
24. Then, on 8 February 2017, you were dealt with for two charges of trafficking ecstasy, being a prohibited person in possession of a firearm, trafficking methylamphetamine, dealing in the proceeds of crime, trafficking in a drug of dependence, possessing a prohibited weapon, trafficking MDMA, handling stolen goods, possessing pseudoephedrine, possessing cocaine, possessing Xanax, possessing diazepam, possessing heroin, and possessing methamphetamine, and possessing cartridge ammunition without a licence, for which you were gaoled for 12 months. You were also dealt with for breach of a community corrections order.
25. On 28 January 2020, you were dealt with on a consolidation for dangerous driving, failing to stop on police direction, trafficking methylamphetamine, trafficking ecstasy, possessing amphetamine, possessing a drug of dependence, being a prohibited person in possession of a firearm, possessing GHB, possessing explosive substances, dealing with the proceeds of crime, committing an indictable offence on bail; again possessing cartridge ammunition without a licence; and for failing an oral fluid test. And for this, you were sentenced to two years and two months' imprisonment, with an 18 month minimum.
26. The current offending apparently occurred eight days after you got out of gaol. You had immediately collapsed back into drug use. You have remained in custody since your arrest on these matters, and you have done well there. You have finally determined, as I understand it, to do something to turn your life around. Your father continues to support you, and, in support of the plea, I received a number of references, both from your father and from family friends, who particularly speak of the sort of person that your father is, but also of their regard for you, and one family friend has offered to have you live with him at his property in the country on your release from custody. Your father continues to support you.
27. Whilst in custody, you have undertaken one-to-one counselling through Forensicare, and you have also undertaken a number of drug and alcohol courses. I have got no doubt that you have finally reached the stage, Mr Luca, where you do understand that at the age of 36, you do need to do something about the way your life is heading. I had a conversation with you on the plea about the fact that you are now at the age where if a person who has been offending and using drugs does not make the decision to turn their life around, it usually means after that, their lives simply continue in the same sad spiral that you have already experienced.
28. You have a son by a former relationship. You care for this boy very much. He lives with his mother. He is regarded as a protective factor for you and you want to be a good father to him. You enjoy, as I have said, a very good relationship with your father, who still lives in Tasmania but appeared remotely on the plea, and I am satisfied that you have good supports waiting for you once you get out of gaol. You made an application to be placed on a Drug and Alcohol Treatment Order, but the accommodation part of it was simply not able to be organised, and ultimately, that application was withdrawn.
29. For the purposes of the plea, I will state, the maximum penalty for Charge 1 is 10 years' imprisonment, or 1200 penalty units. Maximum penalty for Charge 2 is 5 years' imprisonment. The maximum penalty for the summary offence of dealing with the items suspected of being the proceeds of crime is two years' imprisonment. The maximum penalty for unlicenced driving is six month's imprisonment and/or 60 penalty units. It was not submitted that I should deal with you in any way other than by a term of imprisonment.
30. The argument of parity was raised insofar as Logan Mitchell is concerned, because I placed him on a Drug and Alcohol Treatment Order, but in doing so, I attached a sentence of 18 months' imprisonment in relation to the charge of trafficking firearms. It is my view that because of your prior criminal history, which has involved on several occasions unlawful possession of firearms, that in fact the sentence I impose should be greater than that.
31. However, in sentencing you, I do take into account your early plea of guilty. I take into account your good progress in gaol, particularly in relation to drug use. I take into account the supportive framework you have waiting for you when you finally leave jail, that you have the support of a strong and law-abiding father, with whom you have a close relationship; the support of family friends; and your own motivation in what you want to do to turn yourself into an appropriate father for your son.
32. However, trafficking in firearms is an incredibly dangerous exercise — I do not think I need to spell out precisely why that is so, but the spread of illegal firearms in the community puts the community at risk. It is an exercise which carries with it a high degree of criminality, and so general deterrence and denunciation and protection of the community are very much principles to which I must have regard.
33. In all the circumstances, therefore, I sentence you as follows. On Charge 1, I sentence you to two years and six months' imprisonment; on Charge 2, Summary Charge 15 and Summary Charge 19, you are sentenced to six months' imprisonment on each charge; and on the charge of unlicenced driving, you are sentenced to one month's imprisonment.
34. The base sentence will be the sentenced imposed on Charge 1, two years and six months. I order that two months of each of the sentences imposed on Charge 2 on the indictment and Summary Charges 15 and 19 be served cumulatively to the sentence imposed on Charge 1, which gives the total effective sentence of three years. I order that you serve two years before becoming eligible for parole, and I declare that 598 days have already been served by way of presentence detention.
35. I shall also add that, in sentencing you, I take into account that you have been held in custody at a difficult time, subject to lockdowns and restrictions arising from the pandemic. I also take into account the fact that you pleaded guilty to this charge, carries with it in those circumstances a greater than normal modification because (as pursuant to Worboyes) the court is struggling with a backlog of cases unable to be heard in the pandemic times, and this is even more greatly assisted by pleas of guilty that are entered. Pursuant to s6AAA, I declare that, had you not pleaded guilty, I would have sentenced you to a term of imprisonment of five years, and order that you serve a minimum term of three years.
36. Thank you. I know there's forfeiture orders and things, which I will sign and get sent to you. Is there anything else that I need to attend to?
37. MS DOYLE: As Your Honour pleases. No, Your Honour. Thank you.
38. HER HONOUR: All right. Mr Luca, I really wish you well. I really hope that this time you have spent in gaol, the thinking that you have done, the work that you have done, continues when you get out.
39. OFFENDER: Yeah.
40. HER HONOUR: You know, you have got a good dad, you have got good, prosocial people in your life. You are a skilled man, you know? You were a hardworking, contributing person until a whole lot of events came together and you started using ice. You can go back to that. You know, you have got a lot more going for you than many, many people that I sentence, who have no family at all, who have got no skills at all. You are clearly a man of some intelligence, some skills, and if you stay off drugs, I regard you as having good rehabilitative prospects, and I really hope that life works out for you once you get out of gaol. All right?
41. OFFENDER: Thanks, Ms Gaynor.
42. HER HONOUR: Not at all. Thank you, Mr Luca. Thank you, everyone.

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^[1] A pseudonym.

^[2] A pseudonym.

^[3] A pseudonym.

^[4] A pseudonym.

^[5] A pseudonym.