R v Cambareri & Ors [2001] VSCA 39

9. This tabulation excludes four summary offences committed by Bortolani and dealt with by consent, for which sentences of up to three months' imprisonment were passed, all these sentences being concurrent with all sentences imposed. The maximum penalty for all the trafficking offences was 15 years.

12. The case is yet another example of the dangerous and resourceful work done by undercover officers as part of a patient, well planned and well executed police investigation.

15. Pursuant to leave granted under s.582 of the Crimes Act 1958 on 1 September 2000 three of the offenders - Rocco Cambareri, Frank Bortolani and Ian Warwick Mealy - appeal against sentence.

18. The pleas for leniency were not all heard at the same time. This came about because of the different courses the defendants had taken. Bortolani pleaded guilty at the committal mention, on 12 May 1999. On 29 July 1999 the other four defendants were committed for trial, following a contested committal in the course of which witnesses were cross-examined by counsel for each of them. At the end of the committal Bullivant pleaded guilty and the other three defendants reserved their pleas. On 6 March 2000 all five defendants were presented. The judge was told that the pleas of Bortolani and Bullivant were ready to proceed that day but that discussions were continuing between the Crown prosecutor and counsel for the other three defendants. The judge adjourned Cambareri's possible trial until 7 March and the hearing of pleas on behalf of Mealy and Kain until 9 March. Counsel for Cambareri, Mealy and Kain were thereupon excused from further attendance at court for the time being and the judge proceeded to hear pleas on behalf of Bortolani and Bullivant. These pleas concluded on that day (6 March) and the judge remanded the two prisoners in custody until 10 March, when he sentenced them. In the meantime, on 8 March, Cambareri pleaded guilty and a plea on his behalf was heard. On the following day, 9 March, Mealy and Kain both pleaded guilty and their plea was heard; on 14 March they were both sentenced. Cambareri was sentenced on 21 March. Thus the pleas were heard on three separate occasions and the prisoners were sentenced on three separate occasions. The courses adopted by the defendants explain why one presentment was filed against Bortolani and Bullivant and another against Cambareri, Mealy and Kain.

21. His Honour was put in a difficult position in more ways than one. To begin with, he was asked to digest a mass of material in a short time and evidently spent the whole weekend before Monday 6 March finding his own way through five lever arch files of depositions, said by him to run into thousands of pages, which he had received on the eve of the weekend. The course taken by three of the defendants put him in the position where, unless scarce and valuable time was to be wasted, he was obliged to hear the pleas one after another, instead of hearing all pleas together. This is, generally speaking, undesirable. In the present case two of the appellants allege manifest disparity.

24. We ourselves have been embarrassed by the state of the material and unnecessarily burdened by the need to read through considerable portions of the voluminous depositions and transcripts of proceedings in the absence of satisfactory summaries. But we have received much assistance from all counsel.

"1. The sentence was manifestly excessive. 2. The Learned Sentencing Judge erred in imposing a sentence which by its length failed to recognise that the Applicant was addicted to heroin at the time of the offences and engaged in trafficking to support his addiction. 3. The Learned Sentencing Judge erred in failing to place any or any sufficient weight upon the Applicant's prospects of rehabilitation. 4. The Learned Sentencing Judge erred by taking into account in sentencing the Applicant inadmissible material namely the admissions of other accused, Bullivant and Bortolani, as to the scale of the operation. 5. The Learned Sentencing Judge erred in sentencing the Applicant on the basis that he had was engaged in trafficking in a drug of dependence for a period of five months or longer."

31. 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.

34. According to Dri, an aboriginal to whom Cambareri supplied amphetamine was later said by Cambareri to get rid of a lot of "speed". On 2 November King drove Cambareri to four different places in Reservoir, at each of which he conducted at least one drug transaction. Cambareri said he had a shotgun and another firearm and offered King any form of firearm (including a machine pistol) for $2100, saying that the supply of ammunition was unlimited. The following day Cambareri explained to King how a mobile telephone could be used for drug trafficking and agreed to assist him in establishing himself as a drug trafficker. On 6 November he told King he would match whatever price was quoted to him for one ounce lots of heroin or amphetamine.

37. On 12 November King met Bortolani in Reservoir and ordered one ounce of heroin. Bortolani handed King two grams of heroin and telephoned Cambareri and arranged to supply King with one ounce of heroin for $5000. Cambareri arrived by car and later supplied King with one ounce of "rock" heroin in return for a payment of $3500 on account of the price, $5000. At this point three unmarked police cars arrived and the police tried to arrest Cambareri, who immediately drove off with King still in his car. King managed to seize the steering wheel and turn the car into the gutter. As the other police approached Cambareri threw the bag of "rock" heroin into King's lap. A search warrant was then executed at the home of Cambareri's girlfriend, where police found one ounce of heroin, $545 in cash, freezer bags, scales and equipment to compress heroin. A further search warrant was executed at the home of Cambareri's parents, where his car was found. In the boot were found four bags containing about ten grams of heroin and about 18 grams of amphetamine, and also a bag containing $3060 in cash. King's purchases of heroin from Cambareri were of a total of eight grams of heroin and 11 grams of amphetamine for a price in all of $3560. This does not include the one ounce transaction on 12 November.

40. After his arrest Cambareri declined to answer questions.

43. So far I have dealt with purchases shown to have been made from Cambareri himself. Further light is thrown on the scope of his activities by telephone intercepts recording calls made from the fixed telephone service at Mealy's home between 21 August and 5 October 1998. There are about 20 conversations in which Cambareri's voice is identified. All these conversations appear, from their use of code and argot, to be drug-related. The role of Kain (Mealy's de facto wife) was mainly that of assisting Mealy in his absence by taking incoming telephone calls to their home and receiving prospective purchasers there. King's evidence shows that on 8 October Cambareri supplied Julie Anderson with about seven grams of heroin and that Cambareri told him that she "sold to gaols". On another occasion, when they were talking about drug dealing, Cambareri told King that some one had thrown a parcel over a prison wall for him earlier that day.

46. According to King, Cambareri on a number of occasions had two mobile telephones, which were either on the front console in his car or carried by him. King described these as ringing continually and said that Cambareri told him that they were always ringing.

49. 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.

52. It was common ground on Cambareri's plea that most of the heroin he was proved to have supplied in specific quantities was between about 35 and 50% pure and that the one ounce supplied by him on 12 November was 20% pure.

55. According to Dri, Cambareri admitted to him that Bullivant was getting $600-$700 a week and that he was paying for hire cars used by Bullivant in addition to using hire cars himself. According to Dri's evidence of his own observations, both Bullivant and Cambareri changed their cars frequently. There was evidence that between February and August 1998 Bullivant hired 14 different cars for a total of 172 days, at a cost of $5,918.

58. There was a good deal of evidence of precautions taken by Cambareri to escape detection. One of these was the use of a variety of cars. He also had and expressed views on how a dealer should drive a car to avoid the attention of the police. To take another example, waiting outside premises for someone to arrive was to be discouraged. Shortly before his arrest he was taking steps to have a surveillance camera installed at his own premises so that he would know if they had been entered by the authorities in his absence. He speaks on occasions of his unwillingness to employ a runner unless he is entirely satisfied of the person's suitability. A variety of pieces of evidence of what he says and does give the clear impression of an artful and practised drug dealer at work, very actively engaged in his own busy distribution business.

61. As regards his personal circumstances, Cambareri was 40 years old at the time of the offences. He had been before the court 11 times between 1974 and 1993, sustaining 26 convictions. He had been convicted six times of trafficking in a drug of dependence and seven times of possession of a drug of dependence. The first set of trafficking convictions, sustained in 1986 for dealing in heroin and amphetamine, resulted in a total effective sentence of 10 years' imprisonment with a minimum term of 8 years. In December 1993 trafficking and possession convictions led to a total effective sentence of 4 years 9 months with a non-parole period of 3 years 3 months. He had been released only about nine months before Operation JATH began.

64. I turn now to his grounds of appeal, and deal first with ground 4, that the judge erred by using against the appellant the admissions of Bortolani and Bullivant about the scale of the operation. Cambareri, Mealy and Kain all declined to answer questions after their arrest, but Bortolani and Bullivant both made admissions. Cambareri's fourth ground of appeal relates to the use by the judge of their admissions to the police that they were each collecting about $1000 a day for Cambareri from purchasers.

67. There are more answers than one to this ground of appeal. In the first place, counsel appearing for Cambareri on the plea did not suggest that anything appearing in the records of interview of Bortolani and Bullivant was challenged and should not be used against Cambareri. In those circumstances, it was open to the judge to use the material as he did: Halden[2]; Craine[3]; Victorian Sentencing Manual, 2nd ed., s.12.4. In the second place, in addition to Bullivant's record of interview, the depositions contained his witness statement, in which he dealt at length with the volume of business he transacted and said in particular, "The most I had given Rock during one day was a thousand dollars." Putting to one side the records of interview of Bortolani and Bullivant, there was, in addition to the witness statement of Bullivant, such evidence of the volume of dealing and the prices paid as to render unimportant the admissions of the co-offenders mentioned by the judge. This fourth ground is without substance.

70. Ground 5 is also insubstantial. This complains of error in that the appellant was sentenced on the basis that he trafficked for a period of five months or longer. The ground is based on the judge's reference, in his reasons for sentence, to "the multifarious dealings over the four to five month period or longer preceding your arrest". The applicant was arrested on 12 November, this being the closing date in the two counts against him, and so it was said on his behalf that he had been sentenced on the basis that he had trafficked in July, that being the first month in the period covered by count 1. Then it was said that there was no evidence of trafficking by him in heroin in that month, Mr Tehan drawing attention to the assertion of Cambareri's counsel on the plea that "there is no evidence of trafficking in heroin in July". Mr Tehan also referred to the Crown prosecutor's passing observation in the course of the plea, "the operation ran for the time that it did, and by operation I am referring to the period after 5 or 6 August on to arrest".

73. Again there are more answers than one to this ground of appeal. In the first place, the plea of guilty to count 1 constituted an admission that there had been an ongoing trafficking by the appellant throughout the period covered by the count: Giretti[4]. In the second place, there was evidence from Dri that the appellant trafficked in heroin continuously from March 1998 until October 1998. I refer in particular to his statement taken on 5 August 1998, which provides clear evidence of trafficking in the month of July. The assertion made by counsel for Cambareri on the plea that there was no evidence of trafficking by his client in heroin in July was incorrect. As I have said, Dri's evidence shows continuous trafficking by Cambareri from March onwards. It cannot be suggested that there was any arrangement between counsel that Cambareri should be dealt with on the basis that his trafficking did not begin until August, and even if there had been any such arrangement I can see nothing to suggest that Cambareri's counsel acted on it to his client's detriment, as by omitting to call evidence from his client denying that he had trafficked in July. The depositions suggest that any such denial must have been regarded as unworthy of belief. The fact of the matter is that Cambareri was fortunate to obtain by negotiation a presentment which did not charge him with trafficking before July. On 6 March the Crown prosecutor told the judge that it was expected the matter would be resolved as regards Cambareri, observing "it's mainly in relation to dates".

76. Ground 2 complains that the sentence failed to recognise that the appellant engaged in trafficking to support his heroin addiction. It should at the outset be noted that our attention has not been drawn to any piece of evidence suggesting that the appellant was a user of, let alone addicted to, heroin, or for that matter amphetamine. No evidence was called on his behalf on the plea; all that was done was to put in evidence a testimonial from the youth development officer at Port Phillip Prison. On the plea the judge was told by the appellant's counsel that he was, at the time of these offences, a heavy user of both drugs. (The ground of appeal refers, however, only to heroin.) Counsel asserted that at the time of the offences Cambareri was using 2-3 grams of amphetamine and more than one gram of heroin a day. After the plea had been made the Crown prosecutor observed that he could not recall anything in the depositions suggesting that Cambareri was a drug user and reminded the judge that it was for Cambareri to establish that fact on the balance of probabilities. In his reply Cambareri's counsel did not avail himself of the opportunity of making reference to the depositions.

79. Not only have we not been referred to anything in the depositions suggesting that Cambareri was a drug addict or user, but there is a good deal in the material to which we have been referred giving a picture of aspects of his way of life, and his industrious work in his trafficking business, and the skills which he employed in an attempt to escape detection. I have found nothing in the evidence of his words or behaviour to suggest that he was ever anything other than a fully competent person going about his business assiduously, always well in control of himself.

82. The crimes to which he had pleaded guilty, his criminal history and what the evidence disclosed of his industry and resourcefulness might well have led a judge to view with scepticism mere assertions from the bar table about the cause of his offending. Nevertheless the judge found that Cambareri was a drug addict at the time of these offences and that his addiction had contributed to them. I have, with respect, considerable reservations about these findings, but I shall consider this appeal on the basis that the appellant is entitled to the benefit of them.

85. Mr Tehan argued this ground as if it asserted specific error, but in the end the ground probably does no more than emphasise a suggested mitigating circumstance in support of an argument that the sentence is manifestly excessive.

88. One of the assertions of Cambareri's counsel on the plea was that the proceeds of his trafficking were "ingested by himself mainly by way of snorting". This cannot be reconciled with what the evidence disclosed about the scale of his activities - including such matters as the number of employees, the number and size of transactions, the volume of telephone calls, the payments made to employees and the cost of hiring vehicles not only for Bullivant but also for Cambareri himself, something done to reduce the danger of detection by using different cars to effect deliveries to the large number of places selected by Cambareri as suitable delivery points. At best, in the light of the judge's benevolent findings, it could be said that Cambareri spent part of the proceeds of sale on drugs for himself. If he was a user, then I should have thought that his position was more to be equated with that of the proprietor of an old-fashioned mixed business who might gain a tax free benefit by eating a little of the stock. Moreover, what was said by Callaway, J.A. in R. v. Bernath[5] should be borne in mind. I do not think it can be said that the offender's drug addiction makes the present sentence manifestly excessive.

91. Little need be said about ground 3 (rehabilitation), which Mr Tehan argued as a separate ground notwithstanding that it too might more properly be classified as one giving particulars of an allegation of manifest excess. It is noteworthy, but not in the least surprising, that on the plea the appellant's counsel remarked that the prognosis in relation to rehabilitation obviously had to be guarded. It certainly cannot be said that the judge overlooked what was said to him about rehabilitation: he mentioned it in his reasons. The report from the youth development officer at the prison spoke in very favourable terms of the appellant's work with young offenders. Notwithstanding this and the other matters relied on during the plea I find it quite impossible to say, particularly having regard to the nature of the present offending and to the previous convictions for trafficking and possession sustained in 1986 and 1993, that the judge failed to place sufficient weight on his prospects of rehabilitation.

94. Very little was said by Mr Tehan in dealing separately with ground 1, manifest excess. He relied essentially on the matters the subject of grounds 2 and 3 and in addition the plea of guilty. It is unnecessary to refer specifically to what has been said in recent times by this Court about the trade in heroin and the trade in amphetamines. I am not persuaded that this sentence is manifestly excessive and I would dismiss Cambareri's appeal.

"1. That the sentence imposed was excessive in all the circumstances. 2. The Learned Sentencing Judge did not properly apply the principles of parity in his sentencing considerations. 3. The Learned Sentencing Judge denied the Applicant natural justice."

101. Mealy was 38 when he committed the offences. His prior convictions, sustained on 21 court appearances between 1979 and 1998, numbered 118. Twice he had been convicted of possession of a drug of dependence and twice of using a drug of dependence. Kain's position must be mentioned, since disparity is raised by Mealy's appeal and by that of Bortolani. She was 36 when she offended. Four court appearances during a two year period beginning in February 1994 had resulted in 28 previous convictions, including one for using a drug of dependence.

104. Mealy was charged with three counts of trafficking - in heroin, amphetamine and cannabis - over the same two month period. He received three concurrent sentences of five years with a three-year non-parole period.

107. He lived in a unit in Macleod with his de facto wife, Kain. The evidence against him was provided mainly by the informer, Dri, by King and by the telephone calls intercepted by the tapping of the service at his home. Between 21 August and 5 October 1998 about 83 telephone conversations of Mealy were recorded, all of them drug-related. That is an average of about two conversations a day. Some were with his supplier, Cambareri. (Cambareri was not shown to have supplied him with cannabis.) There were in the period of interception some additional conversations in which Kain, not Mealy, took part. Her role was that of his assistant.

110. Mr Morrissey, for Mealy, took us through the evidence of trafficking in cannabis by his client. He submitted in passing that it was such as to show the sentence of five years' imprisonment on that count to be manifestly excessive. There may be considerable force in this contention. But since all three sentences passed on Mealy were concurrent, Mr Morrissey took up the position that he would not seek to have the cannabis sentence set aside as manifestly excessive unless the other two sentences were also to be set aside. Having regard to the view I have formed on the proper outcome of the appeal as regards those other two sentences I need say no more about the question whether the cannabis sentence was manifestly too severe.

113. There was a good deal of discussion before us of what the evidence as a whole revealed the trafficking activities of Mealy to be as regards heroin and amphetamine. It shows him filling orders for half a gram and one gram of heroin (the quantity supplied being in fact under weight), at times of 30% purity and at other times 60%. He supplied amphetamine in quantities varying from one gram to about eight grams, the purity ranging from 3%-60%. A considerable number of transactions and offers to buy and sell both drugs were proved. In the course of his business he regularly bought high-grade amphetamine and "cut" it for resale. Business can be described as quite brisk so far as he is concerned. He made deliveries by car and also sold drugs from his home. He used a mobile telephone for drug dealing as well as his fixed home service. He was the link between Dri and Cambareri.

116. It was put to the judge that both he and Kain were long term drug users, and in the case of these offenders the material certainly supports that view. It was said that he had trafficked to support his own and Kain's drug habit. I have already made passing reference to his 118 previous convictions, sustained over a period of nearly 20 years. These included two for possession and two for using a drug of dependence, but none for trafficking. They also included 14 convictions for burglary or attempted burglary, 20 for theft, 14 for handling, three for unlawful possession, 34 for obtaining or attempting to obtain property by deception, two for possession of firearms and one for assault with intent to rob. He had as a result served numerous prison sentences. While it was rightly pointed out in his favour that he had no prior convictions for trafficking, the significance of his bad criminal record for sentencing purposes is not on that account to be underestimated. The arguments relied on in support of the contention that the sentences for trafficking in heroin and amphetamine were manifestly excessive are recorded in Mr Morrissey's outline of submissions and need not be repeated here. Having considered them, I am not persuaded that ground 1 is made out and I turn to ground 2, which complains of manifest disparity. Although his outline of submissions refers to the sentences passed on all four co-offenders, in his oral submission Mr Morrissey in the end submitted only as regards Cambareri that if this Court reduced his sentence parity would make it necessary also to reduce the sentence passed on Mealy. As regards Kain, very little was said in support of this ground of appeal, and I think it clear that the judge was entitled not only to differentiate between Mealy and Kain (as was conceded) but also to differentiate in the way in which he did, having regard to the very different roles which the two played in the offending.

119. Mr Morrissey's oral submission was really directed to the sentences imposed on Bullivant and Bortolani, and especially the former. Since the argument concentrated on the way in which Bullivant was dealt with, I shall deal only briefly with the suggested disparity as regards Bortolani. Leaving aside the summary offences, Bortolani was to be dealt with only for one offence of trafficking in heroin for about six months and one offence of possession of amphetamine. (The latter offence attracted a sentence of three months' imprisonment, Bortolani having been found in possession of 2.6 grams of 2.5% pure amphetamine at the time of his arrest.) For the offence of trafficking in heroin for about six months he received a sentence of 4 years 6 months, while Mealy received two concurrent sentences of five years for trafficking in heroin and amphetamine over a two-month period. Bortolani's non-parole period was 2 years 6 months, while that of Mealy was three years. I bear in mind the distinction sought to be drawn by Mr Morrissey between the roles of Mealy and Bortolani. In my opinion their respective personal circumstances were so different as to make it impossible to say that the sentences passed on them are manifestly disparate. Mealy's criminal record was very much worse than Bortolani's. Mealy did not co-operate with the police in any way, declining to answer questions. Bortolani made extensive admissions to the police. He told them about his connection with Cambareri, although he did not name him. On the plea the Crown prosecutor described him as having told the police everything except Cambareri's name, which was already known to them. In addition to making a record of interview, Bortolani co-operated with the police in respects which I shall mention in dealing with his own appeal. In all the circumstances, I am not persuaded that manifest disparity exists between the sentences passed on Mealy and Bortolani on the trafficking counts.

122. As regards Bullivant, he was charged with trafficking heroin over a seven-month period and trafficking amphetamine on 27 August 1998. He received the same sentence - 5 years 6 months - on each count, concurrent, with a non-parole period of three years. In the course of the plea the judge was told that the second count concerned the sale of a nominal one gram of amphetamine of 40% purity. There was no suggestion that this count was a representative one: on the contrary, the judge was told in terms that this was the only occasion on which Bullivant trafficked amphetamine. Not surprisingly, having regard to the amount of material which he had attempted to master in a very short time, the judge appears to have overlooked this in passing sentence on Bullivant, for he said that he would pass the same sentence on the amphetamine count, since the offence was identical. There was, of course, a very significant difference between the Giretti (between dates) count and the single occasion count. Bullivant did not seek leave to appeal against sentence; his advisers may well have thought that the error was inconsequential, since total concurrency operated.

125. For parity purposes, the comparison is between the 5 year 6 month sentence received by Bullivant for trafficking heroin over a seven-month period and the five-year sentence received by Mealy for trafficking heroin over a two-month period; and of course there are the respective non-parole periods.

128. 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.

131. In all the circumstances I am not prepared to say that the sentence of 5 years 6 months passed on Bullivant for trafficking in heroin over a seven-month period, and the minimum term, when compared with the sentence of five years passed on Mealy for trafficking during a two-month period, and the minimum term, are such as to show manifest disparity.

134. 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.

137. The second leg of the appellant's argument under ground 3 is that the judge in fact sentenced Mealy on the basis that his role was not greatly different to that of Bullivant and Bortolani. This depends upon the last sentence in the following passage in the reasons for sentence:

"Dealing first with you, Miss Kain. On each charge you will be convicted and sentenced to 16 months imprisonment. Each of those sentences to be served concurrently with one another. And I direct that 12 months of that sentence is suspended for a period of two years. You, Mr Mealy, are in a completely different category, taking into account the activities that you have been physically involved in, and your prior convictions have somewhat of a parallel with that of Mr Paul Bullivant. And after careful consideration I see no reason why I should deal with you in a different manner to the way that I dealt with him."

I do not regard the last sentence as constituting or implying a finding to the effect suggested. In the whole passage the judge began by passing a lenient sentence on Kain. He then went on to say that Mealy stood in a completely different position, and referred to his activities in offending and to his prior convictions, saying that the latter resembled those of Bullivant. In the concluding words the judge was contrasting the leniency which he had just extended to Kain with the substantial sentence, accompanied by a substantial non-parole period, which he had earlier passed on Bullivant. He was saying in effect that, unlike Kain, Mealy, like Bullivant, would receive a substantial sentence and a substantial non-parole period. He then proceeded to pass a head sentence six months shorter than that imposed upon Bullivant, but with the same non-parole period. The words "deal with you in a different manner" are apt to describe the passing of a sentence. They are not apt to describe the finding of a fact.

142. I think that Mealy's appeal also must fail and I turn now to that of Bortolani, which is confined to the trafficking sentence. His grounds of appeal are:

"1. The sentences are manifestly excessive in all the circumstances. 2. The sentencing judge erred in that he gave insufficient weight to mitigating factors, including: (a) the applicant's pleas of guilty; (b) his admissions to the police; (c) his assistance to the police with respect to the present matter and other matters; (d) his remorse; (e) his limited criminal history; (f) his drug addiction; (g) his motive for and his role in the offending; (h) his personal circumstances generally; (i) his attempts at and prospects of rehabilitation; (j) the delay in hearing the matter. 3. The sentences infringe the principle of parity among co-offenders."

146. Bortolani was 33 at the time of the offences. Four court appearances between 1987 and 1992 had resulted in 16 prior convictions or findings of guilt. The last set of convictions had led to a short prison sentence. None of his convictions was for a drug offence.

149. Mr Croucher argued grounds 1 and 2 together, in effect treating the second as giving particulars of the first. His arguments are sufficiently recorded in his helpful outline of submissions. He placed most emphasis on the information given by his client to the police, both in relation to Cambareri and in relation to another matter or matters, as mentioned in the letter from Senior Constable Stevenson. This describes the information as having assisted the prosecution case against Cambareri. It says nothing about the nature or utility of the information as regards the other matter or matters, but the provision of that information was none the less to be taken into account in favour of Bortolani.

152. Bortolani's trafficking in heroin extended over a period of about six months. Having considered what was said on his behalf in the plea, together with the reasons for sentence and the outline of submissions of Mr Croucher as amplified by him orally, I find myself unpersuaded that either the head sentence of 4 years 6 months passed for trafficking in heroin (the only sentence attacked) or the non-parole period is manifestly excessive.

155. 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.

158. That leaves the question of disparity with the sentence passed on Mealy. He received a five-year sentence for trafficking in heroin, the non-parole period being three years, while Bortolani received a sentence of 4 years 6 months with a non-

parole period of 2 years 6 months. The present case is a little unusual in that, in a ground of appeal which I have already rejected, Mealy has complained of manifest disparity between the sentences passed on Bortolani and himself on the trafficking counts, while in the ground now under consideration Bortolani makes, so to speak, a counterclaim by comparing his sentence with that of Mealy. In Bortolani's favour here is the fact that his criminal record fell a long way short of that of Mealy. Another important circumstance is that Mealy did not co-operate with the police at all, declining to answer questions, while Bortolani made full admissions and provided the information already mentioned. Against Bortolani is the fact that his period of trafficking was a good deal longer than that of Mealy. In addition, quite apart from the matter of the period, I think it may be said that the role of Bortolani was a more significant one than that of Mealy. It is of course for an appellant to establish his ground, and the advantage enjoyed by the sentencing judge in a case like the present should not be overlooked. His Honour had what he described as thousands of pages of depositions before him. I have already commented on the fact that the summaries provided to us are not as full as one would wish and that we have in addition had recourse to portions of the voluminous depositions and transcripts of proceedings. On a reading of the transcripts of proceedings it is apparent that the judge has drawn on material in the depositions which no party has chosen to place before us. Even without this consideration, I would not uphold the present ground of disparity, but it is a consideration which reinforces my view that the ground has not been established.

167. I have had the benefit of reading in draft the reasons prepared by Brooking, J.A. in each of these appeals and concur in them and in the result he proposes for each of them.

172. I agree that each of these appeals should be dismissed for the reasons advanced by the learned presiding judge.

[1] (1986) 24 A.Crim.R. 112 at 119 per Crockett, J. and 121 per Gray, J.

[2] [1983] 9 A.Crim.R. 30.

[3] [1981] 3 Cr.App.R.(S) 198.

[4] [1986] 24 A.Crim.R. 112.

[5] [1997] 1 V.R. 271 at 275-6.