DPP (Cth) v Salatino [2018] VCC 1378

4 The governing principle under s.16A(1) of the Crimes Act is the imposition of a sentence which is of a severity appropriate in all the circumstances of the offence.

5 In formulating the appropriate sentence, I have to consider the matters identified in s.16A(2) of the Crimes Act, to the extent that they are relevant and known to the court.

6 The legislative objective of the charge for which you have been found guilty is directed at suppressing the illegal importation of narcotics into Australia.

7 The factual circumstances of your matter are quite simple. On the 13 February 2017 you entered Tullamarine Airport, Melbourne having flown from Fiumicino Airport, Rome via Dubai. You had a large "Monza" branded suitcase in your possession which was examined on your arrival by an officer from the Australian Border Force (ABF).

8 You admitted to the ABF officer that you had packed the suitcase yourself and were fully aware of its contents. You said that you intended to stay in Australia for seven days and had travel documents confirming that you were to depart on 20 February 2017.

9 You are an Italian national and at the time of entry into Australia you were employed as a special teacher's aide working in Bari, Italy. You had never travelled to Australia before.

10 The Monza suitcase was large and very heavy. You required the assistance of the ABF officer to place it on the examination bench. It was found to contain personal belongings, including toiletries, clothing and loose papers. Hidden underneath the lining of the suitcase, the ABF officer found a false lining, being a wooden board and when that was removed, three packages containing 5,328.1g of a substance comprising 4,528.8g of pure cocaine were found. This is 2.26 times the amount defined as a commercial quantity of cocaine (which is two kilograms).

11 If sold in bulk form the cocaine was worth a very considerable sum.

12 When told of the presence of the drug cocaine in your suitcase you denied knowing about its presence and said that you did not know how cocaine could have possibly have been in your bag.

13 In formulating the appropriate sentence I must have regard to your actual role in this importation. It is accepted by the prosecution that your role was essentially that of a courier or trusted importer. It is not suggested that you were a central person in the importation hierarchy, or that you were responsible for the planning of the importation or the distribution of the drugs once they arrived in Australia.

14 I am satisfied that your role was merely to import, that is, to bring into Australia, the border controlled drug. The verdict is consistent with the jury having been satisfied that you intended to bring into Australia a substance hidden in the suitcase and that you were at least reckless as to that substance being a border controlled drug.

15 I am satisfied that there was a context to your offending. You had experienced a violent marriage as a result of which you suffered the symptoms of Post-Traumatic Stress Disorder, including irregular sleep, episodes of moderate depression and anxiety.

16 The relationship with your husband had broken down and you were separated in January 2015. Shortly prior to the breakdown of the marriage, there was an occasion when your husband pushed you down some stairs, as a consequence of which you miscarried.

17 You had, through your lawyers, formally started proceedings to formalise a separation. Following the breakdown of the marriage you were a fragile and vulnerable person.

18 Eight to nine months prior to your departure you had met a man known as Giuseppe Morea (Morea) in Bari, Italy, through his brother Massimo, whom you had known for some ten years. Massimo managed a bar that you frequented and you met Giuseppe Morea through him at the bar. Over time you developed a close friendship and Morea became aware of your personal situation in respect to your marriage breakdown. You enjoyed his companionship and he was very supportive of you and you would regularly socialise with him.

19 He proposed to you that you should "take a break" in Melbourne, that is, take a holiday and that all expenses would be paid. He put that proposal to you two days prior to your expected departure. Initially you said no to his suggestion, because you did not have a current passport, but with his support, he was able to arrange for you, through the local passport office, to have a passport issued in a very expedient manner, so that you were then able to depart.

20 On the day of your departure, Giuseppe Morea and a friend, Carlos, collected you. You were provided with all your travel documents and confirmation of hotel accommodation in Melbourne. They collected you and your luggage from your home and drove you towards Rome Airport. A short distance prior to the airport, you stopped at a roadside service station, where you took a toilet break. Upon your return to Morea's car there was another male present whom you had met previously, which male was known to you only as "the Bookkeeper".

21 Following a discussion between you, Giuseppe Morea and the Bookkeeper, it was decided that you needed a larger, more secure suitcase to travel the long distance to Australia. The Monza suitcase was produced and you transferred all your personal belongings into the suitcase. Unknown to you, Morea then arranged for you to take a taxi to complete the short journey to Rome Airport. He maintained, because of traffic, he had to get back to Bari and he could not take you the rest of the journey.

22 From the evidence at trial, the prosecution could not prove beyond reasonable doubt, that you had knowledge of the contents of the suitcase. The prosecution case was put on the basis that you were reckless as to the substance being imported being a border controlled drug and you are to be sentenced on that basis.

23 Given your role, it is accepted by the prosecution that you may not have been aware of the precise quantity of borer controlled drug involved, or the value of the drugs imported. They submitted that it was likely that you would have appreciated that they were of some weight and some value. The weight of the drug is a highly relevant factor to which I must have regard in determining the seriousness of your offending, albeit not the principal factor. I am satisfied the evidence shows that your motivation for the offending was the opportunity to take a trip overseas, all expenses paid and that there is no other evidence that you were to receive any extra financial reward for the importation.

24 I accept that you were a vulnerable, emotional, and somewhat naive woman who was exploited by Mr Morea and his associates in order to bring into Australia the border control drug.

25 I do not consider that this is a case where the principles of Verdins apply so as to reduce your moral culpability; however, I have taken into account your vulnerable emotional state and fragility and accept to a degree your judgement was compromised. Whilst explaining your role in the importation, it does not excuse your conduct.

26 Having regard to all the circumstances, I consider this to be a situation where the importation was a once-off and it is a low-range example of this serious offence of importing a commercial quantity of a border control drug.

27 I have taken into account your level of co-operation with the authorities at the time of apprehension. You participated in a lengthy record of interview and made substantial admissions at the trial, which meant that the trial was conducted in an expeditious manner.

28 The main issue at trial concerned your state of mind. That is, whether you intentionally facilitated the importation of a substance and whether you knew, believed or were reckless as to whether that substance was a border control drug.

29 I have had regard to your character, antecedents and age. You were 39 at the time of the offending and you are now aged 40. You are a person who has no prior criminal history and I accept that you are a person who is otherwise of good character.

30 I have had regard to the good character evidence given at trial from Anna Tari, Titsiana Lanerva and Maria Conventini, together with the written references I have received from Sister Giovanna Danza and the references from Teresa Maggi and Giuseppina Boccasile.

31 All of those people attest to your caring, sensitive attitude towards others who are in need. Your friends state that this offending is out of character, and that you are otherwise a person who has good ethics, who has always conducted yourself in an exemplary manner in the past.

32 It is accepted by the courts that prior good character of a person involved in drug importation is generally to be given less weight as a mitigating factor than it might otherwise be given.[2] It is nonetheless of some relevance and I have taken it into account.

33 You were born in Bari but lived in Fascano, a nearby province. You left home at age 19, and went to live in Bari where you attended university.

34 You have completed a degree in Education and a Diploma of Specialisation and you are qualified to work as an integration teacher for pupils with disability.

35 Your parents are both elderly and live in Fascano. Your father has a heart condition, and, given the age and health of your parents, it is unlikely that they will be able to visit you whilst you undergo sentence in Australia.

36 You have an older brother who is six years your senior.

37 You have always enjoyed a very close relationship with your parents. You regularly visited them on weekends and provided them with a high level of support. You suffer and will continue to suffer great anxiety concerning your parents' health and wellbeing.

38 You have an excellent work history, working in the special needs area with both children and adults. Just prior to coming to Australia you had commenced a volunteer paramedic course.

39 Italian is your first language and you have only a very rudimentary understanding of English. Since being on remand you have been able to attend some English classes but find it difficult to understand the classes because there is no interpreter present.

40 In prison, you have undertaken numerous courses relating to kitchen operations, cleaning operations, and also relationship skills.

41 You are very isolated by reason there are no other Italian speaking prisoners currently. I accept by reason of your linguistic limitations that you are very isolated in prison and that will continue to remain so throughout your sentence.

42 Sister Danza from the Catholic Care Prison Ministry provides some limited support and visits you at Dame Phyllis Frost Centre. She noted that you are socially isolated due to your language difficulties. She also commented that you have weekly telephone calls to your elderly parents and your brother, which you find comforting but also stressful. It is very likely that you may not see your parents alive again and this causes you great distress.

43 There is no suggestion that you have any drug or other issues that may have contributed to the offending.

44 Ms Carla Ferrari, a forensic psychologist, examined you and in her report of

19 July 2018, she confirms that you show symptoms consistent with depression, anxiety and Post-Traumatic Stress Disorder.

45 She stated that you are genuinely remorseful for your actions, and that you demonstrate good insight and judgment into the factors leading to you becoming involved in the offending.

46 Ms Ferrari states, and I accept, that a further custodial sentence may actually worsen your mental state, and imprisonment is likely to exacerbate your depression, anxiety, and post-traumatic symptoms. She too highlights your isolation within the prison and states there are no other Italian-speaking prisoners, that you have an extremely limited command of English, making it incredibly difficult for you to manage life in prison, communicate with others, and engage in any meaningful counselling or medical treatment, or other vocational courses.

47 Having regard to that expressed opinion, I find that the sentence will weigh more heavily upon you than a person who does not suffer your conditions and also there is a serious risk that imprisonment would be significantly adverse to your mental health.

48 I am required to take into account the probable effect that any sentence would have upon your family. It was not submitted that the effect of your imprisonment on your elderly parents would be exceptional; however, I have had regard to the fact that they are very old and unable to visit you and that you will not be able to see them for an extensive period and that you will be deprived of their companionship, comfort and support.

49 By reason of your nationality you will have to undertake the term of your imprisonment at the Dame Phyllis Frost Centre, a maximum level prison and that you will not be eligible to be considered for Tarrengower Prison, a minimum level prison that is focused on rehabilitation and transitioning prisoners back into the community. You will thereby be subjected to harsher prison conditions during the term of your sentence.

50 Having regard to your lack of prior criminal history, the excellent character references, your prior positive contributions to the community through both paid employment and voluntary work, I accept that your prospects of rehabilitation are excellent and that you are a low risk of re-offending.

51 Whilst it is accepted there is a real need for general deterrence to be emphasised, in your sentence, having regard to your particular personal circumstances, I consider that specific deterrence is of lesser relevance.

52 It was accepted by Mr McGrath, counsel, who appeared at the plea hearing, that the only available sentence was a term of imprisonment to be imposed with a non-parole period to be fixed.

53 General deterrence in sentencing for this type of serious crime is significant.

54 I must impose a sentence that is of such severity that it will deter others from engaging in the importation of border controlled drugs in a commercial quantity.

55 There is a need for the sentence to signal to those who would be tempted to become involved in such activity, for potential financial reward or otherwise, that they face the risk of stern punishment in the event that they undertake this sort of conduct. This is because of the difficulty of detecting importation offences and the great social consequences that flow from illicit drugs.

56 In formulating the appropriate sentence, I have had regard to decisions of the intermediate appellate courts that have been provided to me by the Commonwealth prosecutor and defence, and note that those decisions serve as a yardstick, in that they illustrate, but do not define, the possible range of sentences available.

57 As I have stated earlier, I consider that a sentence of imprisonment must be imposed, being satisfied that imprisonment is the only appropriate sentence.[3]

58 Before announcing the formal sentence, can you just confirm the pre-sentence detention?

59 MR DICKIE: Pre-sentence detention, Your Honour, I think it is 563 days, not including today, Your Honour.

61 HER HONOUR: All right, I will now announce the formal order of the court. In respect to the one charge of importing a commercial quantity of a border controlled drug, you will be convicted and sentenced to 10 years' imprisonment and I fix a non-parole period of six years' imprisonment.

62 I make the following declaration of pre-sentence detention. I declare that you have served 563 days of presentence detention, and direct that that declaration be entered into the records of the court. There are no other ancillary orders?

HER HONOUR: All right, thank concludes my sentencing remarks. Ms Parbhoo, did you want to spend some time with Ms Salatino with the interpreter present in court?

MS PARBHOO: Yes, if I could, Your Honour, thank you.

HER HONOUR: Well, look, I'll stand down and I'll enable that to occur and then once that's done, we can then proceed with the remaining matter in my list today. So we'll stand down, say 15 minutes?

[1] Markarian v R (2005) 228 CLR 357; [2005] HCA 25

[2] See Nguyen v R; Phommalysack v R [2011] VSCA 32; (2011) 31 VR 673 at [34] (point 10), Maxwell P

[3] S17A of the Crimes Act