R v Belbruno [2000] VSCA 201

Court of Appeal (Vic)|2000-10-19|Before: WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.

Criminal law - Sentence - Trafficking in commercial quantities of heroin and cannabis - Respective sentences imposed of 10½ years and 7 years - Sentence of 10½ years for trafficking in heroin not beyond range, but sentence of 7 years for cultivation manifestly excessive - Sentence of 5 years substituted - Meaning of "commercial quantity" in cases of "cultivation" discussed.

In September 1998 the appellant, Carmelo Belbruno, who was born in 1940, was part of a syndicate trafficking at a high level in heroin. He, together with a confederate Tony Lopiccolo, procured large quantities of heroin from his suppliers (two men called Farrello and Gatea) and on-sold in bulk to mid-range dealers in the drug. Their transactions were carried out under cover of a retail jewellery business - called "Steffaninos" - conducted by Lopiccolo in Lygon Street, Brunswick. Their activities became known to members of a task force, comprising officers of the Victoria Police and the National Crime Authority, in August and September 1998. Between 4 September and 16 September they were placed under close surveillance. During those twelve days the appellant, with the assistance of Lopiccolo, procured for and sold to an undercover operative (who went by the name of Karelis) seven blocks of heroin totalling in weight nearly 2.5 kgs., and comprising in excess of 1.75 kgs. of pure heroin at a total purchase price of $480,000. The volume of heroin which they trafficked was in excess of seven times the commercial quantity prescribed by the . The evidence was that the street level value of such a quantity of heroin could be between $2.2m. and $4m. They procured their heroin through Farrello and Gatea, who have been arrested but are yet to be tried. There were three transactions: a sale of one block for $70,000 on 4 September 1998; another sale of one block for $70,000 on 15 September 1998; and a final sale of five blocks for $340,000 on 16 September 1998. Following the final transaction, the police moved in and arrested the appellant and Lopiccolo. The arrests of Farrello and Gatea followed soon after, together with a man named Wilson who had couriered the five blocks sold in the last transaction from Sydney. It is not surprising that, before the court, the appellant accepted the description of a "high-level heroin trafficker to mid-range dealers".

Following the appellant's arrest on 16 September 1998, police executed a search warrant at his residential address at 12 Lily Street, Hamlyn Heights. Those premises were in fact owned by Lopiccolo but rented by the appellant. In the basement garage of those premises, police found a sophisticated hydroponic cannabis crop being cultivated with overhead lights, heaters and exhaust fans powered by electricity which, through a device located in the roof, by-passed the installed meter. The value of the electricity stolen was estimated at approximately $2,800. The crop, comprising 168 plants ranging from miniature to fully grown, was seized. Police also seized at the premises three bags of dried cannabis totalling some 144 grams and a larger bag containing 5.2 kgs. of a mixture of cannabis and vegetable matter. At other premises frequented by the appellant in Ascot Vale, police found a further 43 grams of cannabis which, as was accepted by the Crown, was for the appellant's personal use. The evidence was that the potential mean weight of the useable cannabis found at the Hamlyn Heights premises was a little over 10 kgs., which, if sold in kilogram lots, would fetch approximately $70,000, but if sold in pound lots would be worth over $100,000. The Act prescribes a commercial quantity of cannabis to be 100 or more plants or 25 kilograms. The quantity of cannabis seized from the Hamlyn Heights premises could thus be described as a commercial quantity in the low to mid-range.

In the Melbourne County Court on 29 July 1999, the appellant pleaded guilty to a presentment containing four counts. Count 1 alleged that between the 4th and 16th days of September 1998 he trafficked in heroin of not less than a commercial quantity. Count 2 alleged that between February 1998 and 16 September 1998 he trafficked in cannabis of not less than a commercial quantity. The third count alleged the theft of the electricity from the Hamlyn Heights premises and count 4 alleged possession of heroin found at the Ascot Vale premises. He admitted a number of prior convictions, the most serious and relevant of which was for offences in 1992 relating to the importation of cocaine into Italy, for which he received a sentence of imprisonment for eight years, of which he served four years in a Rome gaol before being released and deported to Australia.

After a plea in mitigation of penalty, the appellant was sentenced to a term of 10-and-a-half years on count 1 (heroin trafficking), seven years on count 2 (trafficking in cannabis), 18 months for the theft of electricity alleged in count 3 and a fine of $250 for the offence of possessing cannabis (count 4). His Honour ordered that three years of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1. The total effective sentence was therefore one of 13-and-a-half years. He was ordered to serve a period of 10 years before being eligible for parole.

It remains to be said that his co-accused Lopiccolo, who stood for sentence at the same time as the appellant and pleaded guilty to one count of trafficking in a commercial quantity of heroin, received a sentence of nine years' imprisonment. Lopiccolo was approximately two years older than the appellant. He was ordered to serve a non-parole period of six years. Although Lopiccolo applied for leave to appeal against his sentence, he has since abandoned that application.

Pursuant to leave, the appellant has appealed against the sentence imposed upon him. Before turning to the grounds of that appeal it is perhaps desirable to refer briefly to some material matters in the appellant's history upon which Mr Lewis, who appeared for him in this Court, relied. The appellant was born in Italy and married there in 1964. He became a master craftsman in fashioning leather goods and worked at that trade both in Italy and Iran before coming to Australia with his wife and two children in 1971. He worked assiduously in various employments between 1971 and 1992. On a number of occasions he set up in business on his own account, mainly in his chosen trade of leather goods. All of these businesses, although showing some potential, failed for a variety of reasons which included fires, defalcation by partners, theft of stock, economic downturns, and inability to compete with the flood of cheap imports when the tariff barriers were lowered in the 1980s. In 1992 he was declared bankrupt and, without warning to his family, left Australia for Brazil in the hope that he could set up business there. When that failed he went to Italy, where he was arrested for the offences to which I have previously referred. When he came back to Australia in 1996, his marriage had finally failed and, according to Mr Watson-Munro, who had seen him whilst he was in custody, he was emotionally distressed and depressed. He found himself financially destitute and had difficulty in obtaining employment. He told Mr Watson-Munro that he was depressed and lacking in self-esteem and that for that reason he was lured into the heroin syndicate because of the financial prospects which it offered. It was Mr Watson-Munro's opinion that his judgment was clouded by his depression, although it is not suggested that the man was in any way dependent upon drugs himself. Whatever mitigating circumstances existed, the appellant's counsel on the plea frankly acknowledged that the appellant would have to serve a significant term of imprisonment.

In this Court, Mr Lewis confined his arguments to the sentence imposed upon count 2, that is, the sentence of seven years for trafficking in cannabis. He contended that, by current sentencing standards, that sentence was manifestly excessive, notwithstanding that the crop seized contained more than 100 plants and was therefore, for the purposes of the legislation, a commercial quantity. Quite properly, Mr Lewis did not contend that the sentence which his Honour had imposed for the heroin trafficking was beyond the range available to him.

Although I appreciate the force of the submission of Mr Hicks (who appeared for the respondent) that the appellant was a professional drug trafficker, and also his submission that for the purposes of sentencing on count 2 his Honour was obliged to take into account the fact of the prior conviction, I am nevertheless of the view that the sentence imposed on count 2 is manifestly excessive. The offence of trafficking in cannabis, as this Court said yesterday in R. v. Clohesy, is an offence which is focussed on quantity, notwithstanding that that fact has been somewhat obscured by the manner in which "commercial quantity" has been defined in the Act as being either 25 kilograms or 100 plants or more. Clearly, in introducing the concept of the number of plants, the legislature has in mind those who are caught, as this appellant has been, in the act of cultivation, and the potential of the crop being cultivated. But the quantity of cannabis derived from cultivation will depend upon the quality of the crop and the number of the plants in it. In this case that quantity was said to be of the order of 10 kilograms, which is less than half the alternative measure by which "commercial quantity" is defined. The Court must of course proceed on the basis that the appellant was indeed trafficking in a commercial quantity of cannabis, but it must also be recognised that, in an offence which is so clearly tailored to quantity, the quantity of cannabis here being cultivated was not, by comparison with other crops, a high commercial quantity. As has been pointed out, this Court recently in a case of R. v. Hartog[1] considered that a sentence of seven years for hydroponically cultivating a far larger crop than the appellant's crop, and which was estimated to produce 25.6 kilograms of useable cannabis, was manifestly excessive. In circumstances where the legislature has set its face against trafficking in cannabis in large quantities by setting a maximum sentence of 25 years, the recent amendments to the legislation have produced a range of sentences in respect of cultivation which cannot, I think, in all cases be seen to be consistent. However, in this case, it does seem to me that the sentence of seven years for the quantity of cannabis here being trafficked, in the absence of reasons being given for it, and even taking into account the appellant's prior conviction, was beyond the range legitimately open to his Honour. In my view, therefore, the sentence on count 2 should be set aside. On that account, the sentencing discretion is re-opened. I would confirm the sentences imposed by the learned judge on counts 1, 3 and 4.

In respect of count 2, I would, for myself, impose a sentence of five years' imprisonment. Mr Lewis, whilst recognising that some cumulation of that sentence should be ordered, has submitted that the Court should tailor it, the total effective sentence and the non-parole period to recognise the appellant's age. Age, whether young or old, will, of course, always be a factor relevant to the sentencing discretion, but those of advancing years who commit crimes as serious as these were, cannot

expect to escape appropriate punishment by reason of that factor alone. (R. v. Bazley[2]; R. v. Crowley and Garnier[3].) Bearing in mind that in respect of count 2 the appellant is to be treated as a serious drug offender, I would for myself direct that three years of the sentence which I would impose upon count 2 be served concurrently with the sentence imposed upon count 1. If the other members of the Court accept whatpropose, the total effective sentence therefore would be one of 12-and-a-half years. I would order that the appellant serve a minimum term of nine years' imprisonment before becoming eligible for parole.

The formal order of the Court will be that the appeal is allowed. The sentences imposed by the learned judge below are quashed. In lieu thereof the Court confirms the sentences imposed by his Honour in respect of counts 1, 3 and 4. In lieu of the sentence imposed by his Honour in respect of count 2, the Court imposes on that count a sentence of imprisonment of five years. The Court orders that three years of the sentence on count 2 be served concurrently with the sentences imposed on counts 1, 3 and 4. The total effective sentence will therefore be one of 12-and-a-half years. We direct that the appellant serve a period of 9 years' imprisonment before being eligible for parole.

We declare pursuant to s.18 of the Sentencing Act 1991 that a period of 764 days be taken as having been served pursuant to the sentences that we have imposed and we direct that that declaration and its details be noted in the records of the Court.

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