R v Caccamo

R v Thomson & Houlton (2000) 49 NSWLR 383 R v Henry (1999) 46 NSWLR 346 R v Bernath (1997) 1 VR 271 CASES CITED: R v NP [2003] NSWCCA 195 R v Frank Waqa [No 2] [2005] NSWCCA 33 R v Boulghourgian (2001) 125 A Crim R 540 R v Simpson (2001) 53 NSWLR 704

Regina PARTIES: Vincent Anthony Caccamo

G Rowling (Crown - Resp) COUNSEL: P Byrne SC (Appl)

S Kavanagh - DPP (Crown - Resp) SOLICITORS: Giddy & Crittenden Sols (Appl)

IN THE COURT OF CRIMINAL APPEAL 2002/2488

STUDDERT J KIRBY J HOWIE J

Wednesday 3 August 2005 REGINA v Vincent Anthony CACCAMO Judgment 1 STUDDERT J: I agree with Kirby J. 2 KIRBY J: Vincent Anthony Caccamo (the applicant) seeks leave to appeal against the sentence imposed by Shillington DCJ on 30 May 2002. Mr Caccamo pleaded guilty to a number of charges. They were contained in two indictments, the first of which included two counts: Count 1: Supply not less than a large commercial quantity of a prohibited drug (heroin) ( 1.22 kilograms ) between 9 April 2000 and 6 September 2000 (contrary to s25(2) Drug Misuse and Trafficking Act 1985) (maximum penalty: life imprisonment and/or 3,500 penalty units). Count 2: Supply greater than an indictable quantity of a prohibited drug (cannabis) ( 1.28 kilograms ) between 27 September 2000 and 3 October 2000 (contrary to s25(1) Drug Misuse and Trafficking Act 1985) (maximum penalty: 10 years imprisonment and/or 2,000 penalty units). 3 In respect of the first count, Mr Caccamo asked his Honour to take into account three charges on a Form 1, namely: Charge 1: Supply more than an indictable quantity of a prohibited drug (heroin) ( 119 grams ) (contrary to s25(1) Drug Misuse and Trafficking Act 1985) (maximum penalty: 15 years imprisonment and/or 2,000 penalty units). Charge 2: Receiving a laptop computer (contrary to s188 Crimes Act 1900) (maximum penalty: 10 years imprisonment). Charge 3: Supply more than an indictable quantity of a prohibited drug (heroin) ( 105 grams ) (contrary to s25(1) Drug Misuse and Trafficking Act 1985) (maximum penalty: 15 years imprisonment and/or 2,000 penalty units). 4 The second indictment contained two counts in the alternative. The Crown ultimately accepted a plea to the lesser charge, namely: Count 2: Supply not less than a commercial quantity of a prohibited drug (heroin) ( 966 grams ) between 1 January 1999 and 6 May 1999 (contrary to s25(2) Drug Misuse and Trafficking Act 1985) (maximum penalty: 20 years imprisonment and/or 3,500 penalty units). 5 His Honour Judge Shillington QC sentenced Mr Caccamo as follows: Count 1: (First indictment) Taking account of the matters on the Form 1, 8 years imprisonment to commence 1 October 2001 and expire 30 September 2009, with a non parole period of 5 years to commence 1 October 2001 and expire 30 September 2006. Count 2: (First indictment) Imprisonment for a fixed term of 3 years to commence on 1 October 2001 and expire on 3 September 2004.

Count 2: (Second indictment) Imprisonment for a fixed term of 5 years to commence on 1 October 2001 and to expire on 30 September 2006. 6 Since the sentences on the last two counts were concurrent, the effective sentence was a term of imprisonment of 8 years with a non parole period of 5 years. 7 Before dealing with the submissions made on behalf of Mr Caccamo, I should describe the circumstances in which the offences were committed.

The offences. 8 A statement of agreed facts was tendered during the sentencing proceedings. Mr Caccamo lived with his family in rented premises in the northern beaches area of Sydney. He was, in 1999, a man aged 43 years. He had been unemployed since 1998. He was addicted to heroin. 9 It may be easier to comprehend the criminality involved in the various charges against Mr Caccamo if they are described in chronological order. Count 2 in the second indictment related to the period January 1999 to 6 May 1999. In respect of that period, Mr Caccamo was charged with having supplied a commercial quantity of heroin, namely 966 grams. 10 The charge arose from information provided to the police. Detectives from the Manly Police Station then began surveillance on premises in Manly Vale. On 15 April 1999, a task force was formed with the objective of investigating the supply of heroin by Vincent Caccamo to the northern beaches. The telephones of Mr Caccamo were lawfully intercepted. The conversations thus recorded confirmed his involvement in the supply of heroin. 11 On 5 May 1999, the police arrested Neil Kinlay in one of a number of raids conducted that day. They also arrested a number of others. They went to the home of Vincent Caccamo. However he was not there. No drugs were found at his home. Mr Kinlay later furnished a statement to the police in which he described the operation of Mr Caccamo. Each day he would drive Mr Caccamo to the premises of Peter Rotariu in Campsie, where Mr Caccamo would take delivery of approximately 7 grams of heroin. The heroin would then be distributed to a number of individuals, themselves heroin addicts who, in turn, would use a network of other addicts to sell the heroin in the northern beaches area. The account provided by Neil Kinlay was supported by evidence gathered by the police through telephone interceptions, listening devices and surveillance. 12 Mr Caccamo managed to evade arrest for some time. On 20 January 2000, Detectives Patison and Jasper from the Manly Police Station went to the premises in which he was hiding. During their search, they found Mr Caccamo and they also found 4 grams of heroin and $7,000 cash. They corruptly confiscated the heroin and the money. They also made an arrangement with Mr Caccamo by which he would pay them $10,000 to obtain their support in a bail application. Mr Caccamo was driven to a location near the police station. He was then dropped off so that he could walk into the police station and surrender himself. Mr Caccamo was charged and released on bail. Later that evening, he paid Det Patison $5,000 towards the money which he had promised for his release. 13 That was the beginning of a corrupt relationship between Mr Caccamo and these police officers. However, the New South Wales Police Service had already received intelligence concerning Snr Const David Patison. Arrangements had been made to intercept his telephones, including his mobile phone. Similar warrants were later obtained in respect of Const Mathew Jasper. At the same time, the Police Service began surveillance on each officer. By this means, they became aware of their dealings with Mr Caccamo. Mr Caccamo reached an agreement with Constables Patison and Jasper by which they would provide a measure of protection whilst he continued to distribute heroin in the northern beaches area. In return, he would pay each officer $1,000 a week. 14 Between 9 April 2000 and 6 September 2000 (the dates in count 1 on the first indictment), the police gathered a large body of evidence demonstrating the purchase by Mr Caccamo of 1.22 kilograms of heroin and its distribution. Each day he would be driven to Croydon Park where he would purchase heroin from Stefan Barta. The statement of facts described the distribution network in these words: "During this period of time the offender had two lower level runners, Julie March and Michael Vanderlans. These two co-offenders would sell heroin on behalf of the offender and return the profits to the offender for the purpose of the further purchase of heroin. They were given free heroin as a percentage of what they sold. The offender would also regularly supply 1 and 2 gram quantities of heroin to Jamie Gunning and Jane Havers who were also on-selling the heroin. The offender would also sell heroin to other persons." 15 Having entered corrupt arrangements with the police, Mr Caccamo was then asked by Snr Const Patison, as a favour, to procure certain further drugs for another drug dealer. The matter has a complicated history. Snr Const Patison, at the same time he was dealing with Mr Caccamo, was also dealing with Luke Benbow, who was involved in the distribution of cannabis leaf. On 24 August 2000, Luke Benbow was arrested by an undercover operative. He was in possession of almost half a kilogram of cannabis leaf and $31,000 in cash. He was taken to Manly police station and charged. He was then given bail. 16 As Luke Benbow walked from the police station, after his release on bail, he was watched by surveillance police. He was observed meeting Snr Const Patison who was then in uniform. On 6 September 2000, a conversation between Snr Const Patison and an undercover operative was captured on a listening device. Snr Const Patison suggested that they solicit $15,000 from Benbow for protection until the end of the year. They then attempted to do so. Benbow protested that he could not pay that sum because 1 kilogram of cannabis, which he had for distribution, had recently been stolen. He believed, wrongly, that it had been taken by the undercover operative involved in his arrest. 17 Snr Const Patison then offered to introduce Benbow to another supplier. He said he could vouch for him. The objective was to replace the missing drugs so that Benbow could resume his drug distribution. He would then have the money to pay the police the cash they were corruptly demanding. 18 Snr Const Patison made arrangements with Mr Caccamo to fill the order. Again the arrangements were recorded on listening devices and telephone intercepts. A surveillance officer witnessed a meeting between Snr Const Patison and Mr Caccamo at the Warringah Mall car park, where they were seen to walk into a stairwell. 19 As it happened, Mr Caccamo had some difficulty in finding satisfactory cannabis leaf. He ultimately was able to do so. After many conversations, which were recorded, the drug was provided to Luke Benbow. According to the agreed facts, Mr Caccamo was paid little money for having performed this service. Count 2 of the first indictment (the supply of cannabis leaf (1.28 kilograms) relates to this episode. 20 The first charge recorded on the Form 1 also derives from this period (22 September 2000 to 4 October 2000). It involved the receipt from Stefan Barta of 119 grams of heroin (being more than the indictable quantity for that drug). 21 In early December 2000, Const Jasper and Snr Const Patison were arrested. They were charged with a number of offences. The decision was taken, however, that for the time being Mr Caccamo and his associates would not be arrested. On 20 September 2001, the police again sought telephone intercept warrants in respect of the telephones of Stefan Barta, Vincent Caccamo and others. The second and third charges on the Form 1 relate to evidence gathered in consequence. On 26 September 2001, the police became aware, through an intercepted telephone call, that a person Mr Caccamo regularly supplied with heroin had a stolen laptop computer. The computer was offered to Mr Caccamo in return for heroin. Mr Caccamo accepted the offer and provided the heroin. He was later observed by surveillance police carrying the computer. Charge 2 on the Form 1 was a charge of receiving. 22 The third charge on the Form 1 involved the purchase of more than an indictable quantity of heroin (105 grams) for supply from Stefan Barta between 25 September 2001 and 1 October 2001. 23 On 1 October 2001, Mr Caccamo was arrested. Some time before his arrest, he had increased the amount of heroin which he personally was taking. When arrested he was already ill and so was taken to hospital. On 4 October 2002, Mr Caccamo told police, who were investigating Snr Const Patison and Const Jasper, that he was anxious to assist their investigation. 24 His Honour, having briefly stated these facts, provided the following comment upon the crimes to which Mr Caccamo had pleaded guilty: "Clearly, the prisoner, over a lengthy period, was engaged in the wholesaling of heroin in the northern beaches area. Although he could not be regarded as a principle in this distribution he was a major operator, employing others to distribute the drugs involved and providing them with drugs for their own use. His activities received corrupt police protection after January 2000 and no doubt he felt that he could carry out his activities with relative impunity. It would seem that because of the compromised position in which he found himself the prisoner, in September and October of 2000, cooperated with a major cannabis supplier, Benbow, to obtain drugs for him."

The assistance provided. 25 At the time of sentence, his Honour's attention was drawn to the assistance provided by Mr Caccamo. His Honour said this: (ROS 4/5) "The prisoner has cooperated with crime investigating agencies and I have received a letter detailing assistance, together with sixteen undertakings to give evidence in other matters. Detective Sergeant Peter Seery has given evidence in this regard and I have received a letter, Exhibit C, detailing these matters. It is not appropriate that more should be said in this regard except to describe the prisoner's contribution to criminal investigation as substantial. It is inevitable that the prisoner's assistance will require any sentence to be served in protective custody. I am informed that since going into custody this has been the situation. His family must (be) regarded, also, at some risk. I regard this criminal activity in a global fashion." 26 His Honour dealt with this issue with some circumspection, because the prosecutions were then incomplete. However, they have now been concluded and the assistance provided by Mr Caccamo is a matter of public record. Indeed, the twenty persons identified in the schedule to the Crime Commission's letter (Exhibit C) describing Mr Caccamo's assistance, all pleaded guilty and have been dealt with (including the police officers). 27 Unquestionably, Mr Caccamo's contribution to the success of the police investigation was substantial. He participated in twenty four electronically recorded interviews. He also provided two typed statements. In respect of the police officers, Mr Caccamo identified twenty seven corrupt transactions in which he had participated. Twelve of those matters were already known to the police. The others were not. 28 Having been arrested on 1 October 2001, Mr Caccamo gave evidence to the Police Integrity Commission on 9 and 10 October. He was described by the Crime Commission and by Det Sgt Seery as a truthful witness. Much of what he said was corroborated by surveillance and intercepted material which the police had gathered. 29 After Mr Caccamo's arrest, and upon his release from hospital, he was taken to the special purposes prison, where he was placed in protection. The first six months involved a measure of isolation. Det Sgt Peter Seery, who gave evidence before his Honour, acknowledged that Mr Caccamo was at risk, as was his family.

The subjective case of the applicant. 30 Very little material was placed before his Honour relating to Mr Caccamo himself. He was born on 9 November 1956. He was, at the time of sentence (May 2002) approaching his forty sixth birthday. He was married and had two children. 31 Mr Caccamo had a criminal record, much of it drug related. His first recorded conviction for a drug offence (possess Indian hemp) was in 1984, when he was twenty seven years old. He received a small fine. There followed in 1986, and again in 1989, minor convictions for dishonesty, the last attracting a bond. In February 1991, Mr Caccamo was charged with possession of a prohibited drug (heroin) and self administering that drug. He was required to enter a recognisance for two years. A year later (March 1992), he was again convicted of a number of drug offences, including self administering a prohibited drug (two counts), which presumably related to heroin. Various penalties were imposed, including six months periodic detention. Mr Caccamo appealed against the order for periodic detention. On appeal the conviction was confirmed, but the Court substituted 500 hours of community service. 32 Several minor convictions followed in 1993. In January 1994, Mr Caccamo was sentenced to a fixed term of three months imprisonment for the supply of a prohibited drug and possessing a prohibited drug. On 22 April 1994, he was charged with robbery in company. He was ultimately sentenced to twenty months imprisonment, commencing on 16 September 1994, with an additional term of twenty months. 33 Mr Caccamo remained addicted to heroin during the period 1999 to 2001 when the offences, the subject of this appeal, were committed. Throughout that period he lived in rented premises. According to the police, he accumulated no substantial assets. His engagement in crime secured a supply of heroin for himself. It also enabled him to support his family.

Grounds of appeal. 34 The appellant relied upon three grounds of appeal which were as follows: 1. The learned sentencing judge erred in his assessment of the appropriate reduction in the sentence to be imposed on the applicant by reason of his assistance to law enforcement authorities: s23 Crimes (Sentencing Procedure) Act 1999. 2. The learned sentencing judge erred in the manner in which he applied the respective discounts that should have been allowed to the applicant for the fact of his pleas of guilty and his assistance to the law enforcement authorities. 3. The learned sentencing judge erred in failing to have regard to the provisions of s21A of the Crimes (Sentencing Procedure) Act 1999 as matters to be taken into account in determination of the applicant's sentence. 35 It is convenient to deal with all grounds at the one time.

The sentence imposed. 36 It will be remembered that Mr Caccamo was arrested on 1 October 2001. The charges in the first indictment related to matters he freely disclosed when describing his relationship with the corrupt police. The charges, in effect, were fashioned to reflect what he disclosed, although the police had, by that time, independently gathered a deal of evidence in respect of each offence. 37 Mr Caccamo was brought before the Local Court on 18 December 2001 and from time to time thereafter until 1 March 2002, when he pleaded guilty to the two counts in the first indictment, also acknowledging the matters on the Form 1. The matters were then referred to the District Court for sentence under s51A of the Justices Act 1902. Each was plainly a plea at the earliest opportunity. 38 The charges on the second indictment related to the supply of heroin before the arrest of Neil Kinlay on 5 May 1999, when Mr Caccamo went into hiding. These were the charges which predated Mr Caccamo's corrupt arrangement with Detectives Patison and Jasper (made on 20 January 2000). They were the subject of negotiations between the prosecution and the lawyers for Mr Caccamo before his arraignment in the District Court. The indictment at that point charged both the supply of a large commercial quantity of heroin (carrying life imprisonment) and, alternatively, the supply of a commercial quantity. The latter charge involved 966 grams of heroin, which is just below the one kilogram necessary for a large commercial quantity. The prosecution, on arraignment, accepted a plea to the lesser charge. 39 It is said by the applicant, and it may be accepted, that Mr Caccamo was entitled to a discount of at least 20% and perhaps more by reason of his pleas of guilty (R v Thomson & Houlton (2000) 49 NSWLR 383). 40 It was also said on behalf of Mr Caccamo that his criminality was significantly diluted by the fact that he was, at the time, a drug addict, and that he made little money as a result of these offences. The Court's attention was drawn to R v Henry (1999) 46 NSWLR 346, especially Wood CJ at CL at 397/8; and R v Bernath (1997) 1 VR 271. In the latter case, Callaway JA (with whom Winneke P and Brooking JA agreed) said this: (275/6) "Mr Gyorffy, who appeared for the Crown before us, did not contest that it is sometimes a very significant factor in sentencing that an offender engaged in trafficking, especially at street level, in order to gain the wherewithal to satisfy his own craving, rather than purely for reasons of greed in callous disregard of the grave harm that offence does to its victims. But, as McGarvie J said in R v Nagy [1992] 1 VR 637 at 640, the regard to be paid to this factor depends on the circumstances of each case. The weight to be attributed to it is greatly diminished, often to vanishing point, when one is considering operations above street level." 41 The determination by the Court in that case is adequately summarised by the headnote, which included these words: "(1) The weight to be given to the fact that an offender was an addicted drug user at the time of engaging in trafficking depends on the circumstances of each case. In this case the offender was a middle man operating on a substantial scale and the weight to be attributed to his addiction was therefore greatly diminished. The sentencing issue was whether there was such a link between the addiction and the offences as to call for mitigation of punishment." 42 Here, the addiction of Mr Caccamo, in my view, did not operate to diminish in any substantial way the sustained and serious criminality which these offences reveal. It cannot be doubted that his objective was profit. That, at the end of the day, he did not accumulate significant assets, was in part due to the fact that, by chance, he was required to deal with corrupt police and accommodate their demands. 43 The main challenge to the sentences imposed by his Honour turned upon the discount given for the assistance provided by Mr Caccamo to authorities. Before dealing with that challenge, it is convenient to address the issues raised by the final ground of appeal. That ground suggested that his Honour was in error in not having regard to the provisions of s21A of the Crimes (Sentencing Procedure) Act, which had been introduced a short time before Mr Caccamo was sentenced. That provision deals with aggravating and mitigating factors which should be taken into account when sentencing an offender. 44 His Honour did not, in terms, advert to s21A, although he did, with one exception, deal with the issues which that section raises. The exception is an aspect which certainly would not have assisted Mr Caccamo, that is, the presence of an aggravating feature (s21A(2)(j)), that he was subject to the requirements of bail at the time he committed each offence apart from Count 2 in the second indictment. Whilst it is true that the bail was corruptly obtained, and to that extent was different from the usual bail undertaking, his failure to observe its terms can hardly be described as going to the credit of Mr Caccamo. I do not believe the applicant has demonstrated error upon this basis. 45 Turning, then, to grounds 1 and 2, attention was drawn to the following passage in his Honour's remarks: (ROS 5) "If it were not for matters of contrition, demonstrated by the pleas of guilty and assistance, I would have imposed overall sentences of fifteen years imprisonment. I find special circumstances, being the harsh custodial situation which must apply." 46 His Honour did not specify the discount for the pleas of guilty, on the one hand, and the discounts for assistance, on the other. However, it is possible to calculate the total discount. His Honour reduced the sentence he would otherwise have imposed (15 years) by 46.6%. That discount extended to both the pleas of guilty and the assistance. It was, according to the applicant, insufficient having regard to the substantial assistance given by Mr Caccamo. To adopt the words of Hodgson JA in R v NP [2003] NSWCCA 195, it was, according to the applicant, "appealably low". 47 The written submissions furnished on behalf of the applicant suggested that, so extraordinary was the assistance provided, that it justified a reduction of at least 60% in accordance with the approach taken by Hodgson JA in R v NP, where his Honour said this: (Simpson and Greg James JJ agreeing) (para 30) "30. By reason of the 20% utilitarian discount for the plea of guilty, the sentence is only 80% of the starting point, and the 50% discount for assistance results in the halving of this 80%, giving 40%. The total discount is 60%." 48 The approach suggested by Hodgson JA has been the subject of comment in a number of decisions in the Court of Criminal Appeal which have followed. Most recently, Dunford J in R v Frank Waqa [No 2] [2005] NSWCCA 33, made this comment: (para 12) "12. In the light of these authorities, I am not convinced that the only manner in which a number of separate discounts may properly be calculated is on a successive and not on an aggregate basis. What is important is that the judge makes it clear which method he is adopting; and in this case, the learned sentencing judge failed to do so." 49 Simpson J, with certain additional comments, and Hidden J agreed. 50 Whilst it must be acknowledged that Mr Caccamo's assistance was substantial and deserving of a significant discount, the applicant's argument depends upon a very precise mathematical calculation based upon his Honour's indication of the sentence he might otherwise have imposed. However, on any view, the criminality of Mr Caccamo was very significant. He pleaded guilty to an offence carrying a maximum penalty of life imprisonment (supply a large commercial quantity of heroin). Each of the other counts carried significant penalties, as did the charges on the Form 1. Had there been no assistance, a sentence in excess of fifteen years could well have been imposed. Further, the view was certainly open that there should have been some accumulation in respect of the sentences imposed relating to the first and second indictments. 51 Ultimately, his Honour was obliged to impose a sentence which gave an appropriate discount for the pleas of guilty and the assistance, but provided a term of imprisonment which would not be an affront, having regard to the criminality of Mr Caccamo. The sentence had to conform with s23 of the Crimes (Sentencing Procedure) Act 1999 and specifically, s23(3). Section 23, relevantly, is in these terms: "s23(1) A Court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. ...

(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence." 52 His Honour was no doubt conscious of the need to ensure that the sentence, including the minimum term, was not unreasonably disproportionate to the nature and circumstances of the offences, and determined the sentence accordingly. I am not persuaded that, either in the total discount applied, or in the sentence imposed, his Honour's discretion miscarried. 53 However, even assuming that, because of the starting point selected by his Honour and the inferred discount for assistance, there was error, the issue then arises whether this Court should intervene. In R v Boulghourgian (2001) 125 A Crim R 540, Spigelman CJ said this, referring to s6(3) of the Criminal Appeal Act 1912: (at para 34) "[34] Even though there is error detected in the reasoning process of a trial judge, s6(3) does not enable this Court, much less require it, to interfere with the sentence unless it is of the view that a more lenient sentence should have been passed: Regina v Astill (No 2) (1992) 64 A Crim R 289 per Sully J at 303 and Lee AJ at 304." (see also R v Simpson (2001) 53 NSWLR 704) 54 I do not believe a more lenient sentence should have been passed. In my view, a lesser penalty would have been unreasonably disproportionate to the nature and circumstances of the offence and would not have met the limitations imposed by s23(3) upon the discount that may be given for assistance.

2. That the appeal be dismissed. 56 HOWIE J: I agree with Kirby J. **********

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