R v Panuccio [1998] VSC 300; [1998] VICSC 69

For the Applicant Mr O.P. Holdenson Haines & Polites

WINNEKE, P.: The applicant in this matter, Vincent Paul Panuccio, is now aged 36. In September 1997 he pleaded guilty in the County Court at Melbourne to trafficking in what can only be described, I think, as a large quantity of methylamphetamine. That occurred in September 1994. It was alleged that he acted in conjunction with two other persons, a man called Michael Dowd and another called Chris Brown. The transaction out of which the charge arose never had any chance of being consummated because the proposed purchasers were undercover policemen engaged in a covert operation to expose would-be drug traffickers.

After a lengthy plea, during the course of which the applicant was represented by senior counsel, the learned judge imposed a sentence of four years' imprisonment upon the applicant for his part in the transaction and ordered him to serve a minimum sentence of two years before becoming eligible for parole. It is against the imposition of that sentence that the applicant now seeks leave to appeal.

The material which the judge was invited to consider when imposing sentence upon the applicant revealed that there had been a series of negotiations over a period of some two weeks between the co-accused as the sellers and an undercover police operative, code-named "Rick", as the buyer which resulted apparently in an agreement to pass ten pounds of methylamphetamine for a total price of $370,000. The transaction was to be completed by two separate transfers, to be separated by a matter of hours. It was agreed that the first exchange of illicit drugs was to occur in the car park of the Ascot Vale Leisure Centre and that that was to occur on 14 September 1994. The applicant and his co-accused were seized during the first exchange, in the course of which the sellers produced approximately two kilograms of white powder containing 700 grams of pure amphetamine. As a consequence the anticipated second delivery did not occur. When apprehended the applicant was interviewed but told the police a series of untruths, denying involvement in the transaction and asserting that he had been an innocent by-passer who had been wrongfully seized and that he knew nothing of the affairs in which the police were interested. He maintained his innocence throughout the committal proceedings and admitted guilt, apparently, in March 1997.

An unacceptable period of delay appears to have occurred between the arrest and ultimate trial. It may be that this was in part attributable to the continued denial of involvement by the applicant and Brown, and also perhaps in part due to the inability of the prosecuting authorities to obtain further information in respect of another suspect, one Rick Sequenza, who was apprehended at the same time. It appears that eventually Sequenza was discharged at committal for want of probative material.

The proceedings against the co-accused occurred sequentially. Dowd, who appears to have been at the heart of the negotiations and accordingly was the face most familiar to the police, pleaded guilty almost immediately and was dealt with in 1996. He was sentenced to imprisonment for three-and-a-half years with a minimum of 18 months. Brown maintained his plea of not guilty and his trial took place before a jury between 8 and 12 September 1997. It was on the former of these dates that the applicant formally pleaded guilty to the charge and was remanded for sentence to a date following the conclusion of Brown's trial. Brown was ultimately convicted and a plea hearing was conducted on behalf of both the applicant and Brown before the same judge on 23 and 24 September 1997.

On the hearing of the plea, counsel for the applicant urged that the applicant's involvement in the transaction had been both a late and minor role and, in support of that submission, had invited the judge to consider all the material before him, including the transcript of the committal proceedings, the police records of interview with Dowd and the evidence which had been given at the trial of Brown. It was upon a detailed analysis of this material that counsel had invited the judge to reject assertions that had been made during the course of Brown's trial by both Dowd and Brown in which they had sought to down-play their own roles in the transaction at the expense of the applicant and Sequenza. Specifically counsel submitted that the assertion by Dowd to the effect that the applicant was the source through whom the large quantity of drugs had been supplied should be rejected and that his Honour should rather be satisfied that the applicant's role was nothing more than that of a "foot soldier" whose services had been acquired late in the piece and solely for the purposes of "adding presence" because of his physical size.

The applicant gave no evidence upon the plea, but evidence was called on his behalf from Mr Cummins, a consultant psychologist, from his older sister and from a family friend. It is probably fair to say that this evidence displayed the applicant as a man of contrasts. It was Mr Cummins's view that he was a person of low intellect who had developed a "dependent personality", which, in a search for approval from his peers, made him vulnerable to the demands of others. Furthermore it was said that he was, at heart, a caring man who devoted much of his time to the welfare of his ageing and debilitated parents who, through sickness, were scarcely able to fend for themselves. Thus, it was said, his services were indispensible to the welfare of his mother who, as a consequence of repeated strokes, was wheelchair-bound and needed constant attention to make her life a tolerable one.

In contrast, the applicant, I think it should be said, has an unenviable anti-social history. From 1983 through to 1991 he has been previously convicted 19 times from ten court appearances. Whilst none of these previous offences involved dealings with drugs, they do none the less, in my view, disclose a somewhat unhealthy predisposition towards dishonesty and general anti-social behaviour. In November 1990 he was sentenced by the County Court to 16 months' imprisonment for offences of burglary, theft and criminal damage.

In the course of careful sentencing remarks the judge concluded that he was satisfied to the appropriate standard that the applicant indeed was "a supplier" of the large quantity of amphetamines seized on 14 September 1994. He also found that the applicant had earlier supplied a "sample" which had been transmitted to the police by Dowd at an earlier time, on 6 September 1994. His Honour then reviewed the personal circumstances of the applicant and noted the role which he had played in caring for his parents. He also noted that, although the applicant had three sisters living in Melbourne, they had commitments which made it difficult for them to assist in the care of the parents. Although his Honour did not further mention these matters, it is fairly clear from his remarks that he did not regard them as a factor which should unduly influence the exercise of his sentencing discretion in favour of the applicant, at least in respect of the fixing of a head sentence. It is clear from the whole of his sentencing remarks that his Honour regarded the transaction in which the applicant had participated as a serious example of the crime of trafficking in proscribed drugs, noting that in the present state of the law this particular crime would attract a maximum penalty of 25 years.

In my view his Honour was clearly entitled to take the view of the applicant's crime which he did. However (and this was to the applicant's benefit), although at the time of passing sentence on the applicant his Honour was enjoined by the recently enacted s.5(2AA) of the Sentencing Act not to have regard to any sentencing practices arising out of s.10 of the Act, he none the less felt constrained by principles of parity to regard the effective maximum for the applicant's offence as one of ten years, because that had been the effect of the law in operation at the time when Dowd had been sentenced.

On the hearing of this application, Mr Holdenson has submitted on the applicant's behalf that the learned judge, in imposing the sentence which he did, has failed to give proper weight and expression to the impact which the sentence would have had upon the applicant's elderly and disabled parents, as well as the impact which gaol will have upon the applicant by reason of his recognition that he will no longer be able to care for his parents during the course of his incarceration. Mr Holdenson submitted that the circumstances which obtained within the family were so exceptional that his Honour should have been influenced to reduce the sentence that would otherwise have been imposed to enable the parents' plight to be alleviated. He specifically referred to the sister's evidence which his Honour had accepted as demonstrating the type of assistance which the applicant provides in caring for the parents. He also referred to Mr Cummins's evidence suggesting that the applicant will be less able to cope with the prison sentence because of his perception of his role as a carer for his parents. This latter evidence was not the subject of specific comment by the judge in his sentencing remarks, although he had referred to it during the course of the plea. Mr Holdenson submitted that in the light of the evidence his Honour should have given greater weight to the parents' plight than he apparently did.

In response, Mr Elston contended that his Honour did not err in failing to treat this as an exceptional case because, as he put it, the evidence did not warrant it.

Although the court is not, both as a matter of compassion and common sense, impervious to the consequences of a sentence upon other members of the family of a person in prison, such factors will need to be "exceptional" or "extreme" before the court will tailor its sentence in order to relieve the plight of those other family members. Such a principle is clearly an obvious one, because the court's primary function is to impose a sentence which meets the gravity of the crime committed by the person who is being sentenced. There will rarely be a case where a sentence of imprisonment imposed does not have consequential effects upon the spouse, children or other close family members who are dependent in one form or another upon the person imprisoned.

Thus it has been often stated that it is a general principle of sentencing that the court should usually disregard the impact which the sentence will have upon the members of a prisoner's family unless exceptional circumstances have been demonstrated. The principle has been so often stated that it does not need repeating, but I refer to, amongst other cases, R. v. Matthews (1996) 130 F.L.R. 230 at 233; R. v. Lynch and Ratcliffe (Court of Appeal, unreported, 18 April 1996), particularly the judgment of Charles, J.A. at 5; R. v. Yaldiz (Court of Appeal, unreported, 4 December 1996), particularly per Hayne, J.A. at 12; R. v. Yates (Court of Appeal, unreported, 17 February 1998); R. v. Kim (Court of Appeal, unreported, 18 March 1998). It goes without saying, I think, that the graver the crime for which the prisoner is being sentenced the more difficult it will be to find exceptional circumstances, because the relief usually sought and generally necessary to alleviate the plight of the relevant family members affected will require absolution from incarceration.

Whilst I have sympathy for the plight of the applicant's mother and father in this case, I cannot

accept that the learned judge failed to give sufficient

weight to their circumstances in imposing the sentences which he did. Although it is apparent from the evidence before him that the applicant is the one upon whom the parents are mainly dependent, there are other members of the family who can, and apparently do, share the burden of caring for the parents. Indeed it would seem to me that it was the parents' circumstances which in all probability led his Honour to fix a shorter than normal non-parole period.

There were various other matters referred to by Mr Holdenson on behalf of the applicant, such as the applicant's plea of guilty, his lack of "relevant" prior convictions and the delay between arrest and plea, which were relied upon in support of the proposition that his Honour failed to give proper consideration to the consequences flowing from the imposition of a custodial sentence. However, it is my view that all of these matters were the subject of a proper and full consideration by the judge and that none of them, either alone or in combination, would persuade me that his Honour was in error in determining that this was a case where imprisonment was warranted or in exercising his discretion to impose the sentence which he did.

WINNEKE, P.: The formal order of the Court is that the application is dismissed.

I certify that the eight preceding pages are a true

copy of the reasons for judgment of the Court of Appeal

of the Supreme Court of Victoria (Winneke, P., Brooking and Charles, JJ.A.) delivered on 4 May 1998.

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