R v Paul Anthony Rovere

[2020] NSWDC 560

District Court of NSW|2020-09-18|Before: Spigelman CJ

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At a glance

Source facts

Court

District Court of NSW

Decision date

2020-09-18

Before

Spigelman CJ

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

Contents JUDGEMENT Introduction Form 1 procedure Standard non-parole period The facts and objective seriousness Cocaine charge Methylamphetamine charge Dealing with proceeds of crime charge Cultivate cannabis charge The form one matter Section 21A. Subjective case Psychologist's report Testimonials Prospects Covid 19 Guilty plea Remorse and contrition Special circumstances Totality Parity Variance from the standard non parole period Sentencing considerations Indicative sentences Orders

[2]

Introduction

Paul Anthony Rovere appears for sentence on the following four counts, with the maximum sentences as indicated, and with the standard non parole period, if any, also indicated: 1. Supply of a prohibited drug greater than the commercial quantity in contravention of section 25(2) Drugs Misuse & Trafficking Act, being not less than 250g of cocaine. The maximum penalty is 20 years imprisonment and or a $385,000 fine. There is a standard non parole period of 10 years imprisonment. 2. Supply of a prohibited drug greater than the commercial quantity in contravention of section 25(2) Drugs Misuse & Trafficking Act, being 487 g of methylamphetamine. The maximum penalty is 20 years imprisonment and or a $385,000 fine. There is a standard non parole period of 10 years imprisonment. 3. Knowingly deal with proceeds of crime in contravention of s193B(2) of the Crimes Act. The amount involved was $155,000. The maximum penalty is 15 years imprisonment and there is no standard non parole period. 4. Cultivating a prohibited plant of less than the commercial quantity in contravention of s23(1)(a) of the Drugs Misuse & Trafficking Act, and being 167 cannabis plants. The maximum penalty is 10 years imprisonment and or a $220,000 fine. There is no standard non parole period.

[6]

Cocaine charge

The s25(2) charge relating to cocaine is a "rolled up" charge, in that the supply of no less than 250g was supplied over a number of supplies between September 2018 and April 2019. All of the supplies were made to X. One supply was of 112g in September 2018; the remaining 138g in smaller amounts from the end of 2018. The agreed facts expressly state that the 138g the offender supplied to X were obtained from a Mr Carriage. It is not said in the facts if Mr Carriage also supplied the 112 g. My reasons on sentence for Mr Carriage note that the supply of cocaine dealt with there as a form 1 matter commenced in January 2019, and so post date this September 2018 supply of 112 g. A significant argument in the present matter goes to the issue of parity. One distinguishing feature is that the cocaine supply for Mr Carriage was of no more than 175g, and with the offender, it is no less than 250g. If Mr Carriage supplied 138g to the offender in 2019, and was dealt with on the form 1 for no more than 175g, it seems he must not have been dealt with for the supply of the 112g in September 2018.
This raises a question as to where the 112g in fact came from. Both parties at my request made helpful further submissions on this point. The more likely conclusion on the available material favours the view that the 112 g came from Mr Carriage. I do not find adverse to the current offender that it did not. On reflection the argument is perhaps a little moot, as the position remains that Mr Carriage was sentenced on the basis of the supply of no more than 175g by way of the form 1 procedure, so less than a commercial quantity, and thus had it been a separate charge, would have a lesser maximum sentence of 15 years.
As to the offender's role, I accept the submission that he is a middle man; he plainly received the cocaine from Mr Carriage at various locations, and on supplied that cocaine to X. Whilst adopting certain commonly used terms to label this behaviour can be useful, it can also be limiting. I consider the offender to be more than "a runner". The offender, over a seven month period was integral in the supply chain of a commercial quantity of cocaine. He frequently met with Mr Carriage, and was involved in various drug dealings as demonstrated by the other counts being dealt with.
The agreed fact is the supply was no less than 250g, so a commercial quantity. A large commercial quantity for cocaine is 1kg. Whilst the offender admits to more than 250g, it is not possible on the facts to determine beyond reasonable doubt adversely to him just how much more. Further, whilst the quantity involved is not the sole nor the determinative feature of objective seriousness, it is a relevant consideration, and in this case militates against a finding of anything other than being in the low range, a matter accepted by the Crown in its submissions, though that was argued as being needed to be balanced with the time over which the offending occurred. The role of the offender as I have found is a role not by any means at the lowest end of the range of roles that may be performed. I also take into account the fairly basic methods of communication and organisation and find this was not a highly sophisticated operation. I consider this offence in terms of objective seriousness to be below the middle of the range of seriousness for the purposes of s54A, and I would assess it as being in the upper reaches of the low range.
On this point, I note that Mr Carriage was dealt with on this matter, at least to the amount of 175g, by way of the form 1 procedure. Those reasons therefore do not make an assessment of objective seriousness as to this somewhat comparable charge (the qualifier being used due to the differing quantities and the consequences of that). There was argument regarding this offender as to the effect of the different procedure being used. The offender submitted, and the Crown contested, that it should make no difference, and that the keys to the sentencing are proportionality and totality. I accept the submission of the offender in this regard, with one reservation that is not operative in this case, and would be unlikely to be operative in most cases. That reservation is the different procedure allows for the sentence for the offending being sentenced to be increased; thus if the other matters attracted the maximum sentence, the form 1 procedure may result in an outcome not properly reflecting the overall criminality. That is not this case.
The matters being dealt with are however different; Mr Carriage was dealt with for a matter of less seriousness, due to the lesser amount of drugs supplied.
The ultimate resolution of this debate is dealt with below when the issue of parity is dealt with.

[7]

Methylamphetamine charge

The amount of this supply is barely less than a large commercial quantity and is a factor that I relevantly take into account.
Like the cocaine supplies (subject to the query as to the 112 g), these drugs were supplied by Mr Carriage (see [14] of the agreed facts). The agreed facts show the offender agrees with Mr Carriage to buy unspecified drugs for $60,000; then is informed by Mr Silvia that drugs have arrived at his place; the offender then goes to Mr Silvia's and gets the drugs; leaves and is arrested. Mr Carriage pleaded guilty to supplying this to the offender. I find the offender is clearly below Mr Carriage in the hierarchy of this drug supply operation. Mr Carriage is further up the chain of supply, and I find the offender to again be what could be termed a "middle man".
Whilst this offending is the only count involving methylamphetamine, the facts overall show that this is no one time venture into drug dealing by the offender. Whilst the submission was made, which I accept, that the offender was still working as a plasterer at the time of the offending, that in and of itself does not make the criminality less; the more helpful guide is to look at what he was doing concerning drugs, not what he was doing not concerning drugs.
The offender has access to considerable funds, we know not where from, to affect this transaction. On the facts, as I described it in the matter of Mr Carriage, it is a one off concerning Methylamphetamine, albeit, as just noted, not a one off in respect of drug supply generally. I consider there is no real basis to distinguish this offending from that of Mr Carriage in terms of objective seriousness, other than my finding that Mr Carriage is a person supplying to Mr Rovere, and is above him in the hierarchy of this operation. Accordingly I would assess the matter just marginally below my assessment made in respect of Mr Carriage, so below the mid range and in the upper low range. I assess it only marginally lower because it needs to be remembered that the role of the offender was almost certainly to be to then on supply, just as he had done with the cocaine, which is the same function as Mr Carriage, albeit Mr Carriage is one level closer to the source.

[8]

Dealing with proceeds of crime charge

In short, the offender brought $155,000 in two lots to the premises of Mr Silvia for the purpose of buying drugs from Mr Carriage. It is admitted that this money was the proceeds of crime, which he knew was the proceeds of crime. I find it difficult to meaningfully assess the objective seriousness of this conduct; on one view there is no basis to find beyond reasonable doubt that the money is the offender's, so that he is acting as a conduit between Mr Carriage and some other party. His role here I consider less than with the s25(2) charges (certainly than the cocaine charge) as, somewhat in line with the methylamphetamine charge, it is not known what he next does, and intended to do, with the drugs to be purchased, and to reflect this could be described as more of a delivery man or facilitator, than as a middle man. Suffice to say by his plea he admits dealing with proceeds of crime, knowing it is proceeds of crime, and on these facts, in order to further a further crime of the supply of drugs.
The Crown submitted there was no evidence of the money coming from someone else. Yet it is for the Crown to prove matters adverse to the offender beyond reasonable doubt, and not for the offender to prove the money was not from him. The offender points to his non drug employment and lifestyle free of luxury to raise the reasonable possibility of the money coming from elsewhere. I proceed on that basis. The best that can be said for the offender is that it cannot be treated as being the money of the offender. I note also that the section has no levels of the amount of money involved; there is no ceiling. Thus whilst the sum here is significant, there will be cases where the sum involved is significantly higher, which explains the high maximum sentence. Whilst the amount is not the sole criteria, it is in my view a matter of significance in respect of the charge now being dealt with.
In the matter of Mr Carriage he was charged under section 193C, not 193B, and the respective maximum penalties are 5 years and 15 years. I assessed this matter as being of slightly less seriousness than the methylamphetamine charge. Given the much higher maximum sentence applicable to the offender, my view is this offending should be seen as slightly less serious again. In short, I would assess it as in the low range of objective seriousness.

[12]

Psychologist's report

The offender relied on a report dated 26 August of Sam Borenstein, a forensic psychologist. The report recounts a history of the offender stating he was using ice, cocaine and cannabis each day and he was motivated to offend by being supplied drugs for free. The offender said he did it to feed his habit. There is no evidence showing the receipt by the offender of payment for his conduct, and as noted above, he was still working and has no indicia of unexplained wealth, and nor is there any suggestion of significant money from drug supply going to gambling or other purposes. Whether the reward was all in kind or by some other means, I find that there was minimal reward to the offender from this behaviour beyond the supply of drugs for his own use.
The report notes the offender suffered a serious MVA in 2011. The offender put some emphasis on this, as being the trigger for the need for strong pain or other relief, leading to the use of ice and cocaine. The offender had prior to this been a long term user of cannabis.
The offender grew up in Coffs Harbour, with his parents and two siblings. According to the history given the offender was bullied by his brothers and abused by his father. Even accepting this, which is untested, there is absolutely no detail of what these conclusory statements represent. Without some detail, whilst it may be able to be said there were some rough incidents in the offender's life, I do not consider it open to make a finding of a disadvantaged upbringing, or that the offender suffered some degree of social disadvantage.
The offender left school in year 10 which given his age I would estimate was in about 1978, and gained employment as a plasterer. In 2000 he worked for a bookmaker, though at the time of offending was again (or perhaps always continued) plastering. The offender cared for his parents when they were ill, which shows the offender in a good light, and also supports my conclusion as to his upbringing, without being conclusive.
The report noted the offender stated he had a tough time in prison, including being stood over, and assaulted with a sandwich maker, breaking some of his teeth.
As to psychological issues, the report writer considers the offender cognitively intact, but low in intelligence and emotional intelligence. He considers there are some detachment issues, and a history of substance use disorder. He rules out any psychiatric disorder and anger management issues based on test results.
The psychologist recommends drug and alcohol counselling and counselling for strategies to deal with chronic pain and depression and anxiety.
Medical records were tendered and formed part of exhibit 1. They confirmed the MVA in 2011. The notes relating to the accident show that there were no bone fractures, some abrasions and some bruising. Without minimising the trauma of such an accident, the injuries do not seem to extend beyond soft tissue injuries. The next records are dated 2014. The offender placed some weight on this accident as triggering increased drug use, and there is the prospect of pain being suffered, however these records do not offer great support.

[19]

Totality

In respect of totality I note R v Holder [1983] 3 NSWLR 245 which calls for an evaluation in a broad sense of the overall criminality involved in all of the offending and then to determine what downward adjustment is necessary if any so as to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] it was said:
"[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
The argument for the offender as to the application of the totality principle is a strong one. Counts 1, 2 and 3 are in my view, albeit in a somewhat extended way, one course of the same conduct. Each of those offences happened in the dealings between Mr Carriage, (with the discussion as to the 112g of cocaine above being noted) the offender, and Mr Silvia. The cannabis charge is factually different; it does not involve Messrs Carriage and Silvia, and the offender appears to have a more significant role. That said, that offending did not result in custody for Mr Donohue. Suffice to say, I intend to proceed by way of an aggregate sentence, and that aggregate sentence will reflect a marked degree of concurrency concerning counts 1, 2 and 3.

[20]

Parity

The argument concerning parity focused on the sentence imposed on Mr Carriage. Mr Carriage was sentenced in respect of the same $155,000, albeit under a different section, the same methylamphetamine charge, and part only of the cocaine charge, which in the case of Mr Carriage was taken into account on a Form 1, rather than as a separate charge.
There are some notable differences in the facts relevant to Mr Carriage and the offender. The form 1 matter taken into consideration in the matter of Mr Carriage concerned the supply of a less than commercial quantity, whereas the offender was charged with supply of a commercial quantity. The matters (if both had been charged) carry different maximum sentences, so that the matter for which the offender is charged is considered more serious.
The proceeds of crime charges are also different. For Mr Carriage the charge was under s193C and has a 5 year maximum penalty; here the charge is under s193B and carries a 15 year maximum penalty. There is also no differentiation of penalty under s193B dependent on the amount involved. There were no submissions as to why the two offenders were treated differently in relation to this sum of $155,000. The point of distinction in the two sections is s193C(1) requires there be reasonable grounds to suspect the property is the proceeds of crime, whereas s193B requires knowledge that it is proceeds of crime and an intent to conceal that fact. On the facts, the offender brings the money to the house of Mr Silvia for Mr Carriage as had been discussed. Given the offender is, on my finding, below Mr Carriage in the hierarchy of this drug activity, and given he is saying he is "short" but will have the balance of the money tomorrow, the submission that this money is not the offender's, but likely from some other person, seems plausible. Viewed that way, it must have been obvious to Mr Carriage that the money was from criminal activity. The question is whether by the offender being one step closer to the source of the money, so that he "knew" it was proceeds of crime, as opposed to only having reasonable grounds to suspect it was proceeds of crime, his criminality is as much as three times that of Mr Carriage. On these facts my view is the answer to that question must be no. Whilst Mr Carriage is one step further removed from the money's source than the offender, I consider their criminality in relation to this money to be comparable. By these remarks I am not suggesting that any s193B offence is 3 times more serious than a s193C offence; on the contrary, I accept the argument for the offender, albeit made in respect of the cocaine charge, that the key to any sentencing is to focus on the criminality involved and take into account proportionality. This should be borne in mind especially here where two offenders, for comparable and related conduct are being dealt with under different criminal provisions.
Mr Carriage did not commit a cultivate cannabis offence.
Thus, on overview the offending would appear to be prima facie similar, yet the detail reveals differences. This perhaps, and in my view is, more a reflection of the varying routes by which offenders may be sentenced rather than being any marked difference in the criminality of the conduct being sentenced. The severity of a sentence of incarceration imposed upon a citizen should not be determined by form over substance, particularly where the form may in fact achieve a distortion in the comparable situations. Simply put here, Mr Carriage and the offender were both involved in the same drug supply of cocaine to the amount of 138 g certainly, and precisely the same amount of methylamphetamine (with the minor form 1 matter for the offender to be taken into account), and were involved in the process for further drug supply involving the $155,000. In addition to that the offender is to be sentenced for the cannabis charge, which saw his co offender on that matter receive a non custodial sentence.
Viewed this way, subject to any marked differences in the subjective cases, the submission of the offender that his sentence should be no more severe than that imposed on Mr Carriage has merit.
The immediate problem for the submission however is that the subjective cases are quite different. Mr Carriage had the benefit of a 25% discount in respect of both of his offences, and the form 1 matter (the cocaine matter) was taken into account along with the methylamphetamine count, so it similarly benefited. Here, the offender is entitled to the 25% discount only in respect of count 2, the methylamphetamine charge, and not count 1, the cocaine charge, nor for the cannabis charge.
Further, Mr Carriage successfully argued that he had an upbringing marked by social disadvantage, and relied upon Bugmy, and this was a matter taken into account. This is not present in the current case.
In Lowe v The Queen (1984) 154 CLR 606 Dawson J, with whom Wilson J agreed, summarised the parity principle as follows at 623:
There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or his involvement in the offence are different then different sentences may be called for but justice should be even-handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of a grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.
Ultimately, the overall criminality of Mr Carriage is able to be compared with that of the offender, for despite the differences in the way the offending has been presented to the court, I am satisfied that the offending arises out of largely the same facts. The cannabis charge is relatively minor, and does not give rise to any marked difference. My view is that 3 main matters of difference need to be recognised; one is the fact of the offender being dealt with for a greater amount of cocaine; two is the fact of the differing discounts for the guilty pleas, and three is what I consider the stronger subjective case of Mr Carriage. Notably, each of these three matters is adverse to the offender. Against this needs to be balanced my finding that he is involved at a lower level than Mr Carriage.

[23]

Indicative sentences

The indicative sentences I arrive at, taking into account all of the above matters, and applying the principles of totality and parity, are set out below. I have also added some additional explanation given the intertwining of the facts of this case with that of Mr Carriage: 1. Cocaine charge: 2 years, after allowing for the 10% discount; whilst it may well be that the additional 75g came from Mr Carriage, there needs to be some recognition of the fact that the offender was charged with the more serious offence, and in respect of a greater quantity. 2. Methylamphetamine charge: 2 years, after allowing for the 25% discount; 3. Section 193B charge re $155,000; 21 months, after allowing for the 10% discount. 4. Cannabis charge: 2 months allowing for the 10% discount. There is no utility in adopting a CCO outcome here, for it will have expired by the time of parole, or would have a period to run that does not exceed the parole period. Part of this 2 month sentence will be effectively concurrent by reason of the aggregate sentence.
In light of my comments as to totality, and bearing in mind that the co offender in the cannabis matter received a CCO, I arrive at an aggregate sentence of 4 years and 8 months. There will be a non parole period of 2 years. The sentences will date from 19 April 2019, so that the first date the offender is eligible for parole will be 18 April 2021.
Pursuant to s54B(4) of the CSPA, I indicate that had I set a non parole period for the two s25(2) offences, the periods would have been 10 months for counts 1 and 2 respectively for the reasons set out at [59] above.
I acknowledge this is very close to the same sentence as was imposed on Mr Carriage. My view is that despite the differences in their cases, both as to the structure of the charges and their subjective cases, this is an appropriate outcome. I consider Mr Carriage overall to have a more significant role in the drug supply activities that he engaged in and in which the offender was involved but note the offender was closer to the source of the $155,000, and supplied a greater amount of cocaine. I have commented on the respective subjective cases above, which is why there is a greater variance in the statutory non parole period ratio in the case of Mr Carriage. I also consider that this sentence gives a degree of hope to the offender, for in approximately 6 months he will be able to rejoin his family and the pro social life he asserts he intends to lead.