R v Ferraro [2009] VSC 121

3 The maximum penalties for the offences to which you have pleaded guilty are: in respect of Count 1, trafficking of a large commercial quantity of methamphetamine at Melbourne between 1 January 2006 and 5 June 2007, life imprisonment and 5000 penalty units; Count 2, trafficking in a commercial quantity MDMA at Melbourne on 5 June 2007, 25 years' imprisonment.

4 The Crown have presented a lengthy opening which I have made Exhibit 1 and I do not intend to repeat all of the material contained in that document but I will refer to some of the salient parts.

5 You, together with at least nine other men, were involved in the activities of a large illicit drug trafficking enterprise known as "the company". The company was involved in the manufacture and distribution of very large quantities of methylamphetamine as well as the trafficking of cocaine and MDMA, together with money laundering. The company was run allegedly by "A" from 1 January 2006 until his arrest in Greece on 5 June 2007. "A" exercised control over various aspects of the company including directly and personally issuing orders to various people involved in the company. You were not one of the people who had any dealings with "A". Your dealings in fact were involved with Joseph Mansour and Bartholomew Rizzo. Your role was primarily as a drug courier and storer of the drugs. You provided storage facilities or safe houses including, as I will refer to later, your sister's house in which you stored large quantities of the drugs, chemicals and drug money which were being transacted over the trafficking period. You were paid in drugs and cash for your role.

6 The persons involved in this company were Mansour and Rizzo. They have been described as the right and left hand man in the company. Both would speak to "A" on a regular basis, Mansour more than Rizzo, and they would receive and act upon the instructions of "A" and were responsible for controlling the activities of the company, particularly whilst "A" was out of the jurisdiction and living in Greece. They were directly involved in the money laundering, methylamphetamine manufacturing, preparation and distribution and would give orders and directions to others in terms of those matters.

7 Elias was a drug manufacturer, courier and also a person who was allegedly a confidante of "A". Elias's role was to receive and convert P2P to methylamphetamine and return the finished product to Mansour, Rizzo or yourself for distribution or safe keeping. "A" also spoke directly to Elias. He was paid cash for his role.

8 Issa was the brother of Elias and a drug manufacturer, courier and confidante of "A". Issa's role was also to receive and convert P2P to methylamphetamine and return the finished product to either Mansour, Rizzo or yourself for distribution or safe keeping.

9 The companies accounts, which were known as the "Raymond Weil", as maintained by Rizzo from 1 July 2006, indicates that Issa received in excess of $1.2 million from the proceeds of the drug sales since that time.

10 Tricarico, was a drug manufacturer and confidante of "A" and spoke directly to him. His role was to chemically convert phenylacetic acid to phenyl-2-propanone or P2P. Once the process was completed, that would be delivered to Mansour or Rizzo for transfer to other members of the company to continue with the remainder of the manufacturing process. Tricarico was in fact a student and he took over the manufacturing role when his father "Max" died in February 2007. Tricarico received cash payments in excess of $40,000 on each occasion he completed the procedure.

11 Ryan was another member of the company who also spoke directly with "A". His role was in relation to the quality of the methylamphetamine produced by Tricarico, Elias and Issa. He undertook the role of improving the quality of the methylamphetamine received by Mansour and offered to supply better quality chemicals to "A", in particular, methylamine gas.

12 Another person involved was Benedetti. His role was as a supplier of cocaine to the company. There is no allegation of any involvement of yours in that matter before me so his role is not particularly relevant.

13 Finally, apart from yourself, the last person was Saro. His role was to assist by providing an on-call service for the safe storage and delivery of drug trafficking paraphernalia. He also assisted with the cutting and repackaging of large quantities of methylamphetamine. He would do things such as book hotel rooms for members of the company to cut and repackage methylamphetamine in readiness for sale.

14 In approximately April 2007 one of those involved in the company approached police and indicated his willingness to provide information. That person became registered human source 3030. His information and willingness to co-operate provided the break through in respect of the investigation of these matters. It enabled the police to identify the people, the places, the financial institutions relevant to the company's business. It further allowed them to monitor, record, intercept discussions and movements of members of the company and also introduce covert police operatives for the purpose of gathering evidence. Between May 2007 and 5 June 2007 you were captured on various recording devices, and telephone calls discussing your involvement in these matters. The case against you would be described as strong.

15 On 5 June 2007 you, together with all of the other persons mentioned earlier, including "A" in Greece, were arrested and charged in respect of these matters.

16 In respect of Count 1, trafficking in a large commercial quantity of methylamphetamine between 1 January 2006 and 5 June 2007, the circumstances, as I find them to be in relation to your involvement and that of your co-offenders, are that you were recruited from the beginning by Rizzo to be responsible for the storage of the quantities of methylamphetamine that would be manufactured and collected. You were also to be responsible for collecting, delivering, repackaging the methylamphetamine, other drugs and some of the drug dealing paraphernalia when required by Mansour or by Rizzo. Mansour was the main point of contact for "A". Rizzo, as indicated, was also in contact with "A" but his primary duty was to look after the books of account for the company. This was maintained on computer as was known to those in the company as the Raymond Weil. Both also took part in the cutting, repackaging and sale of the methylamphetamine. Transactions relating to you and your involvement appeared on the Raymond Weil under the name of "Green".

17 Methylamphetamine was manufactured in two parts. Firstly, Max or his son Tricarico, after Max died, would chemically convert phenylacetic acid to phenyl-2-propanone. Elias and Issa would then do the second part of the process referred to as gassing. Your role would be to store that product when it was received from Elias, Issa, Max or Tricarico. For each pound that you dealt with by way of storage you were paid $500 in cash.

18 During the period of this charge, the company sold or attempt to sell in excess of 42 kilograms of what is described as "raw" methylamphetamine. Your role in respect of this amount of amphetamine was to provide a storage facility or safe house for both the methylamphetamine and the pre-cursor products that were expected to be used in the manufacture of the methylamphetamine. You would also transport it and assist in the cutting of the raw amphetamine from time to time.

19 When you and your co-offenders were arrested various items were located at both your property, your sister's property and the premises of your co-offenders. Located at your premises at 90 King Street, Doncaster East were three bags of white powder totalling 214 grams analysed as being between 1.2% to 24% purity of methylamphetamine and between 2% to 50% purity of dimethylamphetamine, $6,350 in cash all of which were located in your bedroom, together with scales, numerous mobile phones, seven blue metal drums containing 60 litres of acetone in each drum, and two drums of liquid which were the by-product of the methylamphetamine manufacturing process.

20 At your sister's residence at 43 Ancona Drive, Mill Park, in the third bedroom of those premises which I am told was a spare bedroom, the police located four plastic bags containing in total 1,208 grams of either powder or tablets being MDMA or ecstasy as it is more commonly known, with a purity of between 20% to 90%. There were also a further four plastic bags containing 985 grams of powder of between 40% to 50% dimethylamphetamine and between .04% to 1.4% methylamphetamine, a quantity of empty heat seal bags, food processor, vacuum sealer and cutting agent. All of these items were located in the cupboard in the third bedroom at your sister's premises.

21 When interviewed by the police in respect of this offence on 6 June 2007, apart from some exculpatory responses, you made no comment.

22 In relation to Count 2, the trafficking of a commercial quantity of MDMA or ecstasy at Melbourne on 5 June 2007, that matter relates to the material found at your sister's premises which when analysed was MDMA, to which I have just referred.

23 In relation to your plea of guilty, the Crown accept that you entered your plea of guilty at an early time and I act upon that basis.

24 I also have to take into account your personal circumstances. You are the eldest of four children. You have two sisters, Melissa aged 27, Kimberley aged 22 and a brother Matthew aged 20. Your parents separated when you were aged 17 and your mother has since remarried. You are not married and have no children. You have been in a relatively long-term relationship with your current girlfriend who is continuing to support you. You attended four different primary schools and then attended Whitefriars College for years 7 and 8. From there you went to Kew High School for one year before returning to Whitefriars for years 10, 11 and 12. You met your co-offender Bartholomew Rizzo when you were in year 8 at Whitefriars College. Mansour and Rizzo were good friends and accordingly you became part of that friendship group. After completing year 12, you went to Swinburne University, together with Mr Rizzo, enrolling in a Bachelor of Business but you left after one semester.

25 Your mother Maria Antoinetta Morizio gave evidence before me on the plea. She is a merchandising manager for a lighting company. She was one of two children. Her brother Joseph was born severely physically disabled and died when he was 14. Your mother married your father at 18 and you were born when she was 19. When you were born you were a healthy child, apart from being a little underweight and jaundiced. She gave evidence that when you were a very young child, from the age of about six weeks onwards, your father would shake you or hit you. When you were possibly three months old she noticed that you only used one of your hands. She took you to hospital and it was discovered that you had cerebral palsy. Your mother stated that she did not leave your father because she was too scared due to his violence. And he continued through your younger life to physically abuse you. Your mother finally left your father when you were aged 18. She gave evidence that you were the subject of bullying and taunts at school due to your physical disability. The cerebral palsy has left you with a slightly unusual gait and a hand that you carry which has a finger permanently stuck out in a claw.

26 You met Bartholomew Rizzo in year 7 at Whitefriars and your mother described you as having a very genuine friendship.

27 Your mother was able to assist in finding employment for you through the VACC and ultimately through them, you had a VACC approved apprenticeship. That apprenticeship was at Inkerman Panels, who provided a reference, being Exhibit 7, indicating that you had worked for them for nine years. You commenced your apprenticeship with them in 1998 and you worked continuously from then until your arrest in June 2007. You were described by Mr Holzer as being a reliable, hard working, honest employee. You were always punctual. You often arrived at work prior to your required starting time and what he described as putting in many hours of morning overtime.

28 Your mother said she was totally unaware that you had any involvement with drugs. Further, your mother gave evidence that since your arrest she has had numerous discussions with you about the impact of drugs upon not only yourself but other members of the family, including your grandparents, siblings and the consequences of drugs trafficking in relation to people such as that. She also gave evidence that you expressed to her great remorse for what you had done to your family, your friends and the pain of the loss of valuable time that has occurred and will continue to occur and that is time that you will never regain.

29 She did give evidence that you intended to use, through education and help from your family, this time spent in custody as a learning experience to allow you to move on with your life.

30 At the time that your mother left her marriage when you were aged 18, you also left her and moved in with your maternal grandparents. Your relationship with your mother after she separated from her husband was not a close one. And she gave evidence that over the period of time of your adolescence through to the current time, she noticed nothing in respect of either alcohol or drug usage in respect of you. Your arrest has clearly changed that relationship and she is much closer to you now than she was previously.

31 You have a relationship with a young woman by the name of Christina Singh. You spent some 10 months together prior to being remanded in custody for this offence. She has remained involved with you visiting you twice a week.

32 Your grandfather Vincenzo Morizio also gave evidence before me. During that evidence he indicated the close relationship that he and your grandmother, now aged 84, had with you, not only since the time that you have lived with them but over all of your life. Your grandfather gave evidence that he never saw any indication of either alcohol or drug abuse related to you. He described you as a normal boy who got up each morning at 5.30 am and went to work. You would go to gym after work and would come home around 6.30 in the evening. Your grandparents were unaware of any drugs that you had stored in their home.

33 A sister, Jane Ferraro, also gave evidence and indicated that she has never seen any signs of drugs or alcohol abuse in respect of you. Similar to your mother and your grandfather, you have expressed your remorse to her and said no such actions as this will ever occur in your life again.

34 I also heard evidence from David Anthony Ball, a psychologist. Mr Ball said that met the diagnostic criteria for a dependent personality disorder. I have some doubts about that matter, which I will address shortly.

35 Your girlfriend Christina Singh also gave evidence and talked about the ongoing nature of your relationship, the remorse that you had expressed and your hopes for the future. She also gave evidence that at no stage during the time you were together, including weekends when she would spend Saturday night and Sunday with you, did she see any indication of your usage of drugs or alcohol.

36 In a further plea John Nicholas Currie, a director of addiction medicine at St Vincent's Hospital, gave evidence. He is a specialist of some 30 years of clinical practice in addiction. He interviewed you at prison and obtained a history from you as to your use of alcohol and drugs. His evidence was that initially your usage was what was described as teenage alcohol and drug use associated with nightclubbing, binge drinking with friends, when they would all go out and do that. You informed him that a change occurred around early to mid 2006 after both you and Bart Rizzo had girlfriends and were thus no longer pursuing drinking in nightclubs with the use of amphetamines or ecstasy consistent with that drinking pattern.

37 You told Professor Currie that from mid 2006 you used approximately a gram a day in very small quantities at about 2½ hourly periods. You would last use at about 8.30 pm and then be asleep by midnight to be up again at 4.30 am. He said that was consistent with people not noticing your drug usage during the period 2006/2007, stating that the only time people would notice the drug usage is when in fact you ceased using it, and people would in fact then notice that someone is tired and lethargic.

38 Whilst I have some hesitation in accepting the version that you have given to both Mr Ball and Professor Currie about your drug usage, I am not satisfied beyond reasonable doubt that the version given by you is not true. And accordingly I will act upon the basis that you were consuming the amphetamine that you claim. That does not, of course, reduce your involvement or criminality in this offence, but does provide potentially something of an explanation although it does not appear to be relied upon as being the primary motivation for your involvement. Although the drug usage may provide some explanation it is also consistent with being a side benefit of the criminal activity in which you were involved The primary motivation for your involvement is submitted to be your dependent personality disorder relating to your dependency upon Bartholomew Rizzo and Joseph Mansour, persons who befriended you in year 7 at secondary school, and who protected you from bullying and difficulties with peers. In exchange you would in fact do their homework and assist them with their schoolwork. The friendship continued after you had left school.

39 Once again, I have reservations about the determination by Mr Ball as to you having a dependent personality disorder. Whilst I accept that you have a degree of a dependent personality and you felt strong loyalty and friendship with Rizzo and Mansour, I do not accept that that was the major motivation in becoming involved in this matter, rather it was a matter of friendship and being part of the group, albeit on a much lower level of involvement. People have friendships, strong friendships and they perform actions out of loyalty and also out of a desire to be involved. You are not unintelligent, and could clearly see that what you were involved in was clearly serious criminal activity, and considering that this activity continued over an 18 month period and involved vast quantities of the drug, it is my view that your initial and continuing involvement was a matter of choice rather than a result of a psychological disorder.

40 I accept that you have a strong level of family support, wider community support and a girlfriend with whom you appear to have a positive future. In light of all of your personal circumstances to which I have referred I find that you have reasonably good prospects of rehabilitation but will need to take positive steps to ensure that in the future you do not become involved with persons who may take you down a different path.

41 The offences to which you have pleaded guilty are serious, that is reflected in the penalty for Count 1, being a penalty of life imprisonment. That is reserved in our courts for the most serious of criminal offending being crimes such as murder and large quantity drug transactions. I do not intend to give you a lecture on the morality of your offending, as it clear by now that you understand the consequences both personal to you and the wider community of your actions in assisting at least 42 kilograms of methylamphetamine to be available on the streets of this city. There is no question that this activity is anything other than extremely serious criminal behaviour.

42 In relation to the issue of parity, the sentence that I imposed upon your co-offender Bartholomew Rizzo for Count 1 was a sentence of 13 years and six months and for trafficking in a commercial quantity of MDMA a period of two years. You are at a level significantly lower than that of Bartholomew Rizzo. In terms of the hierarchy of the company you were in fact a person who was responsible for holding the quantities of methylamphetamine, couriering them from one person to another, occasionally involved in the cutting and diluting of the substance for which you were to receive the sum of $500 per pound. There is no specific amount of money that you made, but it would have been expected that you made approximately $50,000 during the 18 month period. That compares quite starkly to the amounts of money expected to have been made by Mansour, Rizzo, Elias, Izza and Tricarico and even to Benedetti, although Benedetti's involvement cannot in any way be compared to yours as it was a much smaller involvement with a different drug.

43 There is no doubt that the issue of both general and personal deterrence have some relevance in your case, although the matter of personal deterrence can be modified somewhat, in light of my findings of your reasonable prospects for rehabilitation. I do not consider Dr Ball's evidence in relation to dependent personality disorder is sufficient to warrant any application of the Verduns principle, but I take it into account overall in relation to how you may have initially become involved in this. It clearly was not your scheme, it was clear that you had no involvement with "A" and no knowledge of his involvement in this matter until a very late stage. I

44 In balancing all of those matters, together with the relevant principles of sentencing including parity, totality, plea of guilty and the early stage at which the plea was made, your lack of prior convictions, your role in the offence, together with your personal circumstances including your physical disability and your prospects for rehabilitation, I impose the following sentences.

Count 1: Trafficking a large commercial quantity of methylamphetamine - you are convicted and sentenced to be imprisoned for six years

Count 2: Trafficking in a commercial quantity of MDMA - you are convicted and sentenced to be imprisoned for a period of 18 months.

I direct that six months of the sentence imposed upon Count 2 is to be served cumulatively upon the sentence imposed on Count 1, making a total of six years and six months imprisonment. I direct that you are to serve a minimum period of four years before becoming eligible for parole.

Further Declare that there has been 640 days pre sentence detention served in relation to this matter and such is to be noted in the records of the court.

Forfeiture Application under section 33(1) of the Confiscation Act of 1977 is granted.