R v Cambareri & Ors [2001] VSCA 39

R v Cambareri & Ors [2001] VSCA 39 - VSCA 2001 case summary — Zoe

[11]

Cambareri was the proprietor of the drug-dealing business in which the other four defendants, and indeed other persons from time to time, were employed. He himself made deliveries and it may be said that at least seven persons worked in the business at one time or another in the period covered by the presentment. He, it will be recalled, pleaded guilty to trafficking heroin between 1 July and 12 November 1998 and trafficking amphetamine between 6 August and 12 November 1998. The closing date is the day of his arrest, itself quite a dramatic incident. The depositions contain material dealing with his trafficking activities before the first date in the presentment against him (1 July 1998), and this evidence may in my opinion be used judiciously as bearing on the nature and scope of his activities from 1 July on: Giretti[1]. (I might add that, if I were wrong in this view, it would make no difference to my opinion about the proper outcome of his appeal.) In March 1998 the informer Dri was introduced to Cambareri and began buying heroin and amphetamine from him regularly. Between 11 April and 1 July 1998 Cambareri's mobile telephone service received 801 calls from two public telephones in Reservoir. On each of three days in August an undercover police officer ("Hughes") bought one gram of 30% pure heroin from Cambareri for $400. (In each case, the reference is to the quantity of powder or substance, not the quantity of the drug itself.) On 21 August Dri, in company with Mealy, bought one gram of amphetamine and one gram of heroin from Cambareri for $520. The transaction of 21 August was repeated on 27 August. On 1 September Mealy, Dri and another undercover police officer ("King") went to a location in Reservoir. Cambareri arrived, driving a car, and sold them one gram of heroin and one gram of amphetamine for $560. On 3 September Mealy, Dri and King went to a place in Reservoir. Cambareri arrived and sold them two grams of amphetamine and one gram of heroin for $700. On 1 October Dri and King went to a location in Reservoir where they met Cambareri and Bortolani and bought one gram of amphetamine for $200. A week later King bought one gram of amphetamine and one gram of heroin from Cambareri for $500. On 25 October he bought one gram of amphetamine and one gram of heroin from him. On 28 October he bought two grams of amphetamine and one gram of heroin from him. Cambareri offered one ounce lots of heroin and amphetamine for between $6000 and $7000, which he described as a good price. This discussion about price resulted from King's telling Cambareri that he wanted to set himself up like him and sell drugs, but in the Ringwood area, and asking him if he knew anyone who lived in Ringwood and could sell him ounces of heroin and amphetamine. Cambareri said, "I do ounces, mate, I do quite a few", and then went on to mention the price of ounces.

[17]

Considerable light is thrown on Cambareri's activities by Bullivant, who not only made a record of interview but also a statement forming part of the depositional material. There can be no doubt about the availability of the latter for the purpose of sentencing Cambareri. (Indeed, the statement also verifies Bullivant's record of interview, so that on this account the record may be used against Cambareri.) According to Bullivant's statement, he himself was a heroin user, who had stopped using the drug when he moved to Beechworth in about 1993. He said that early in 1998 Cambareri had recruited him as a "runner", delivering heroin, and that as a result he had become a user again. Cambareri supplied him with bags containing heroin which were colour coded to indicate the quantity. (There was other evidence of this colour coding in Cambareri's business.) Cambareri told him where to deliver each bag and how much money he should get in return. Sometimes Cambareri brought the supply of bags to him at his home and sometimes Cambareri telephoned him and they met somewhere and he then received the bags and delivery instructions. He drove to each designated place and delivered the bag in return for the cash. A stage was reached when he was making these deliveries every day, sometimes seven days a week. He was paid $80 every day in cash together with three "caps" of heroin. He was also given a mobile telephone by Cambareri, which Cambareri used to speak to him about arranging deliveries of drugs. Ultimately the position was reached where Bullivant was using the mobile telephone during the day and delivering it to Frank Bortolani in the late afternoon so that Bortolani could use it that night. Bortolani returned the telephone to him the following morning. Each time Bullivant met Cambareri he received six or seven "deals". He made these deliveries in the morning and a similar number in the afternoon and sometimes had time for a third round of deliveries before relinquishing the mobile telephone. He paid all the money he received to Cambareri; the largest amount he paid over in the course of one day was $1000.

[43]

Bullivant, like Mealy, had a bad criminal record. He was aged about 33 at the time of the offences. He had been in court 15 times between 1983 and 1994, sustaining 137 convictions or findings of guilt. He had been convicted three times of possession of and three times of using a drug of dependence, but never of trafficking. He had been given numerous prison sentences. I think Mr Morrissey is right when he says that the criminal records of the two men were much the same. I do not think it is correct to say, as Mr Morrissey submitted, in seeking to contrast the roles of Bullivant and Mealy, that Bullivant was "a courier, not the last link in the distribution chain". In the first place, on the evidence of colour-coding and prices and weights, some of the quantities sold by Cambareri through others were very small and, when distributed by Bullivant, were distributed by him as the last link in the chain. Conversely, some of the quantities in which Mealy dealt were not such as to suggest that he was the last link in the distribution chain. The relative roles of the two men, Bullivant and Mealy, must in the end be a matter of impression, based on the reading of a good deal of material and regard to a considerable number of matters. In the end it seems to me that Mr Morrissey is right when he says that the role of Bullivant was a more significant one (I am not here speaking of the differing periods of trafficking charged), but I do not think that the difference is as great as he suggested. And so into the scales are to be placed, along with many other things, the somewhat more prominent role of Bullivant and the fact that he was charged with trafficking over a longer period. No distinction may be drawn between their criminal histories, subject to this, that Bullivant had not been convicted since February 1994, whereas Mealy had sustained seven convictions arising from three court appearances after that date. This is to be taken in conjunction with Bullivant's evidence that after moving to Beechworth in about 1993 he was drug free until 1998 when, after becoming employed as a runner by Cambareri, he started using heroin again. The judge accepted that Bullivant had remained drug free for 4½ years. He was also impressed by the fact that before his arrest Bullivant had made attempts to get away from the drug scene and had undertaken a methadone program. In addition the judge accepted evidence that Bullivant's criminal activities had been contributed to by brain damage suffered in an accident. Then there is the important matter of the response after arrest. Bullivant made a very long and frank record of interview. In addition, on the day of his arrest he made a witness statement, obviously intended to be used against Cambareri, setting out in detail his association with Cambareri and his own trafficking activities as Cambareri's employee. In contrast, Mealy declined to answer questions.

[45]

This ground - disparity - is not unrelated to the remaining ground of appeal, ground 3, which is that Mealy was denied natural justice. The contention here is that Mealy's plea had been conducted on the footing, acquiesced in by the Crown and seemingly accepted by the judge, that his role was substantially different from that of Bullivant and Bortolani and that in sentencing him the judge had, without warning, treated the roles of all three men as the same. In my view, neither of these propositions is established; in other words, the plea is not shown to have been conducted on the suggested basis, nor is the judge shown to have sentenced on a different one. As to the first proposition, we were referred to what the Crown prosecutor said on 6 March, when the case first came before the judge and some very preliminary observations were made. The prosecutor then said of Bortolani and Bullivant that their roles were similar, in that they had distributed the drugs for or on behalf of Cambareri to buyers. He went on to say that Mealy and Kain were also involved in receiving drugs from Cambareri. This, in my view, fell far short of the putting forward of a hierarchy comprising Cambareri, followed by Bortolani and Bullivant, followed by Mealy and Kain. Next it was pointed out that counsel for Mealy began his plea by saying, "I'm quite certain that your Honour is aware of where my client fits in as does Ms Kain". His Honour replied, "Yes". Nothing can be derived from this. Then we were referred to counsel's assertion, not long afterwards, that Mealy was "a small cog" and, a little further on, that his trafficking was "of a low scale". These observations his Honour received in silence. The Crown said nothing to the judge about the roles of Mealy and Kain. But the passages on which reliance is placed did not place the judge under an obligation to give notice if he contemplated making a finding that (leaving aside the period of the offending) Mealy's role was not greatly different to that of Bullivant and Bortolani.

[54]

Mr Croucher directed most of his attention to the disparity ground, ground 3. He advanced no real argument in support of the view that there was disparity between Bortolani's sentence and the sentences for trafficking in heroin passed on Cambareri and Kain, and I shall say no more than that in my view it is impossible to establish manifest disparity in either of these regards. He concentrated attention on the sentence passed on Bullivant. He rightly observed that there was nothing to chose between Bortolani and Bullivant as regards the period of trafficking and (subject to one matter I shall mention) the role played in trafficking. As to role, he adopted the judge's observation that Bullivant worked the day shift and Bortolani the night shift. Each of them used a mobile telephone and acted as a "runner" for Cambareri. Their positions were similar in other respects. Each was a heroin addict. Each of them made full and prompt admissions to the police. Each of them pleaded guilty. Each assisted the police in relation to the offences committed by Cambareri, Bortolani as mentioned in the senior constable's letter and Bullivant by making an extensive witness statement. In favour of Bortolani was the unspecified information he had supplied to police with regard to some other matter or matters. In Bortolani's favour also was the fact that, while he had a criminal record, Bullivant's record was much worse, as indeed the judge recognised in his reasons for sentence. (I should make it clear that I am not listing all the points of similarity or dissimilarity, although I have attempted to take them all into account.) Against Bortolani was the fact that he had continued to traffick after being arrested, charged with trafficking and bailed in October 1998. In favour of Bullivant was the fact that, as the judge found, he had been drug free for about 4½ years until 1998 and that, again as the judge found, he had before his arrest tried to get away from the drug scene and undertaken a methadone program. In addition, the judge found that his criminal conduct had been affected to some extent by brain damage sustained in an accident. Further, although the roles of Bortolani and Bullivant were the same as regards taking orders and delivering drugs, Bortolani in addition helped Cambareri with the packaging of heroin. So much appears from the transcript of the plea, where reference is made to the depositions and to the need to qualify the position taken up by his solicitors in their letter concerning the basis of his plea. In all the circumstances I am not persuaded that it was not open to the judge to differentiate as he did between these two offenders by imposing the sentences actually passed.

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Judgment (63 paragraphs)

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