Tuesday 23 June 2009
Martinelli v Regina
Judgment
1 SPIGELMAN CJ: The applicant seeks leave to appeal against a sentence imposed upon him by his Honour Judge Coolahan in the District Court on 3 September 2008.
2 The applicant pleaded guilty to one count of supplying a commercial quantity of amphetamine under s 25(2) of the Drug Misuse and Trafficking Act 1985 ("the Act"). There were also two Form 1 offences taken into account for supply and possess a prohibited drug, namely 28 grams of cocaine contrary to s 25(1) and s 10(1) of the Act respectively.
3 The maximum penalty for an offence under s 25(2) of the Act is 20 years imprisonment or a fine of $385,000 or both. There is a standard non-parole period of 10 years. The maximum penalties for the Form 1 offences are 15 years imprisonment and/or a $220,000 fine for supply and two years imprisonment and/or a $2,200 fine for possession.
4 His Honour found the plea was entered at the first opportunity and applied a 25 percent discount on sentence on the basis of its utilitarian value for the administration of justice.
5 The applicant was sentenced to a non-parole period of seven years to date from 13 October 2007 and to expire on 12 October 2014, with a balance of term of three and a half years to expire on 12 April 2018.
6 The hearing on sentence proceeded on the basis of an agreed set of facts which were summarised by his Honour. With respect to the retail drug supply business that the applicant had conducted, his Honour said:
"The offender operated this business in a joint criminal enterprise with his brother and they utilised complicated strategies and techniques in an attempt to conceal their drug supply business. Some of these methods included the use of mobile phones registered in fictitious names and false addresses, the use of multiple mobile phone services in an attempt to prevent telephone interception by authorities, the use of code words when organising drug transactions, using the Italian language when arranging to source drugs and money, discussing with co-offenders various methods to avoid being stopped by police when transporting drugs, such as using taxis.
In addition, the offender discussed with co-offenders methods of secreting drugs in his motor vehicle to avoid police detection; also arranging drug transactions with clients in shopping complexes, registered clubs, hotels and public streets, to reduce vehicular and pedestrian traffic to his home; and the offender also used electronic monitoring and surveillance equipment at his residence.
… [T]he offender operated a business of supplying prohibited drugs, including amphetamines and cocaine. The offender had more than 3,000 relevant telephone calls intercepted on eight different telephone services which relate to his drug activities. The drug supply business operated by the offender was a daily operation between October 2006 and September 2007, involving many different clients who used well over sixty different telephone services.
… The offender was engaged in the business of supplying drugs, not just to street users, but to other suppliers. The business was extremely active, extensive and sophisticated … He was a mid to higher level drug supplier … and the supply was … for profit."
7 On the issue of gambling and drug use, it is pertinent to note his Honour's specific observations. He said:
"On his own admission, he is not a drug user and the supply was, obviously, therefore, for profit, perhaps to fund a gambling habit, but, in the absence of specific evidence of this, I cannot say."
8 After referring to the importance of general deterrence and the protection of the community in sentencing for drug offences, his Honour indicated that a full time custodial sentence was required for this kind of offence, except in the most exceptional circumstances.
9 With respect to subjective matters his Honour said:
" … His criminal history begins in 1969 when he was fined for being the keeper of a common gaming house. In the 1980s and 1990s there are a number of convictions for similar types of offences. He was also dealt with for some serious driving matters. In 2001 he was placed on a s 9 bond for having goods in custody, fined for possessing a prohibited drug and ordered to perform community service for supplying a prohibited drug other than cannabis. On 22 April 2004 at this Court he was sentenced to periodic detention for twelve months with a non-parole period of six months for supplying a prohibited drug other than cannabis."
10 The applicant did not give evidence, but a pre-sentence report (Pre-Sentence Report, 21 August 2008) was tendered which his Honour characterised as "… of no use whatsoever. … none of the subjective material is relevant to the issue of sentence and, in any event, it is not supported by any independent evidence". His Honour referred particularly to the following statement as a "salient feature of the report":
"Mr Martinelli reports that he agrees with the police facts in relation to the offences currently before the Court. He stated that the illicit drugs were for both he and his partner's personal use and he would on occasions sell illicit drugs to close friends."
11 His Honour added in this regard:
"This assertion is patent rubbish and I have no doubt that it was a deliberate lie."
12 In this regard it is relevant to refer back to his Honour's particular findings as to the nature of the business that the offender had conducted: receiving some 3000 relevant telephone calls intercepted on eight different telephone services which relate to his drug activities and other such findings that his Honour made and which I have set out earlier in this judgment.
13 His Honour also referred to the applicant's medical history and accepted that he had prostate cancer which was currently in remission. His Honour observed that it could adequately be managed in custody, and made a "small allowance" on the basis of the illness.
14 His Honour also observed:
" … given the extent and sophistication of the enterprise being operated by the offender and others, the objective seriousness falls to be determined at or above the mid point for a case such as this."
15 His Honour also said:
"If the offender's record is not sufficient to constitute an aggravating factor under the section, the two previous convictions for supply raise to prominence issues of specific deterrence and the protection of the community.
Further, it seems to me that the degree of planning and organisation involved in the commission of this offence, over the extended period of time over which it was committed, was more extensive than that contemplated by the legislature.
The offence was committed in company. This is relevant, not so much as an aggravating factor, in that the actions of the offender were emboldened by the presence of others, but is relevant, in my view, to the nature and extent of the operation.
The offence involved a series of criminal acts.
The offence was committed for financial gain.
As to mitigating factors, the only real mitigating factor I can find is the offender's plea of guilty. This was entered at the first available opportunity and should attract the discount of 25 per cent.
There is, in this case, absolutely no evidence of remorse.
As to the standard non-parole period, this, of course, is not strictly applicable because of the offender's plea, but it is, nonetheless, a useful reference point.
The Form 1 matters are serious in themselves but, in reality, they form part, in my view, of the extensive and sophisticated drug dealing operation which was being conducted by the offender.
This is, as I said earlier, a very serious example of this type of offence. The operation was sophisticated, extensive and on-going. It was conducted for profit. It calls for, in my view, a very significant full time custodial sentence, notwithstanding the age of the offender and his ill health, neither of which seem to have had any effect upon his commission of these offences."
16 Certain aspects of the pre-sentence report are pertinent to issues raised on the appeal.
17 With respect to drug use the pre-sentence report said:
"Mr Martinelli stated that his only period of illicit drug use was for a twelve month period in 2003. He stated that he would consume such orally once to twice a week. He cited ongoing emotional issues and accessibility via his then de-factor partner as compounding factors relating to his use of amphetamines. He stared that around the period of the loss of his parents he was formally diagnosed with cancer and this sent him into a period of emotional turmoil which he claims was a catalyst for his drug use. However the influence of his then partner who has been identified as having a long term dependence on illicit substances appears to have also been a factor.
Further, the inmate has made disclosures to this Service in the past that he used amphetamines for approximately 3 years prior to the commission of the offence of 'Supply Prohibited Drug' in 2003. This raises the concern that the offenders most recent disclosures regarding his illicit drug use may not be indicative of his actual levels of use; nor the extent to which it has impacted on his lifestyle and consequently his offending behaviours."
18 With respect to gambling the pre-sentence report said:
"Community inquiries and perusal of the offender's prior criminal history indicate that there may be some long term issues relating to the offenders gambling habits. It is of concern that should this be the case the consequent financial pressure that this would have created may have further compounded Mr Martinelli's offending behaviours. Further investigation in this area may be prudent."
19 The report also said, "the offender may have an unaddressed gambling and loss and grief issues which would further compound his offending behaviour". The report went on to make recommendations for strategies including "drug and alcohol assessment"; "monitor illicit drug use" and "assessment of gambling issues".
20 It is also pertinent to note the following statement in the agreed statement of facts:
"Police enquiries at Western Suburbs Leagues Club indicate the offender was gambling significant amounts of money on the poker machines throughout the surveillance period."