R v Rizzo [2009] VSC 17

Supreme Court of Victoria|2009-02-09|Before: KING J

Plea of guilty, trafficking in a drug of dependence (large commercial quantity), trafficking in a drug of dependence (commercial quantity), knowingly dealing with proceeds of crime (4.2 million). Large scale syndicate, extended period.

1 Bartholomew Rizzo you have pleaded guilty to four counts, being three of trafficking, and one of dealing with proceeds of crime. You were born on 6 September 1978. You are currently 30 years of age. You were aged between 27 to 28 years of age at the time of the commission of the offences. You have a relevant prior conviction.

2 On 14 May 2003 at the Magistrates' Court at Ringwood you were convicted and sentenced in the following manner:

Possessing an unregistered handgun without a licence,
Possessing a drug of dependence,
Using a false document to prejudice another and
Driving a motor vehicle whilst disqualified and was sentenced to 12 months imprisonment to be wholly suspended for a period of two years, and your drivers licence was suspended for one month.

3 The offences to which you have pleaded guilty and the maximum penalties applicable to each offence are:

Count 1: Trafficking large commercial quantity methylamphetamine at Melbourne (between January 1, 2006 and June 5, 2007) - life imprisonment and 5000 Penalty units.

Count 2: Trafficking commercial quantity cocaine at Melbourne (between January 1, 2006 and June 5, 2007) - 25 years imprisonment.

Count 3: Dealing with approximately $4.2 million knowing it was proceeds of crime at Melbourne (between July 5, 2006 and June 6, 2007) - 15 years imprisonment.

Count 4: Trafficking commercial quantity of MDMA at Melbourne (between May 3, 2007 and June 5, 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. The structure in which this organisation, referred to as "the company", actually operated, demonstrated that the alleged major beneficiary of this organisation was "A". He was, according to the material presented, including the statements of your co-offender, Joseph Mansour, clearly the man in charge and the person who dictated how this organisation worked.

5 I will not use the word alleged in respect of all of the other men who are accused and may be contesting the charges, I am accepting this material for the purposes of sentencing you and not making judgments in respect of those other persons.

6 You, together with Joseph Mansour, were what were described by the Crown as the principal organisers of "the company". The company was involved in the manufacture and distribution of very large quantities of methylamphetamine, the trafficking of cocaine and MDMA and money laundering. There are at least 10 people that have been identified as being members of the company, being:

"A"
Joseph Mansour
George Elias
Chafic Issa
Christopher Ferraro
David Tricarico
Andrew Ryan
Robert Benedetti
Jamie Saro

7 The material that the authorities have been able to access indicates that you and Mansour were involved in this business from at least 1 January 2006 until your arrest together with your other co-accused in Australia and the arrest of "A" in Greece on 5 June, 2007.

8 The Crown described Joseph Mansour as the right hand man of "A" and you as the left hand man. Your involvement was very much attached to the financial side of the business, although you participated in many other aspects of the business, that was your main role.

9 The reading of the statements that Joseph Mansour made to the police indicate quite clearly a number of matters which include:

That at the time that you and Mansour first met "A", you were aware of who he was and his reputation in respect of drug trafficking.
That your first involvement with him involved you and Mansour purchasing two pounds of methylamphetamine and then on selling it to people whom you, together with Mansour, sourced as persons who would wish to purchase the drugs.
That you continued purchasing drugs from the connection "Freddie" that you had made through "A", even after "A" had absconded from his trial and before either of you were having any contact with "A" .
That you and Mansour assisted in the provision of monies to enable "A" to flee the jurisdiction.

10 As far as I have been able to ascertain the business of this so called company, the principal was, as I indicated, "A", and you and Mansour were the trusted confidants of "A". However, it would appear that "A" also gave orders and directions independently to the others, as well as through you and Mansour. It is not disputed that Mansour had more contact with "A" than you did but it is my view that you were equal principals in this company.

11 "A" organised through you and Mansour, and also independently through other members of this organisation, for the manufacture of methylamphetamine. The manufactured methylamphetamine was then sold to "the company", who at that point appeared to consist of you and Mansour, who then had to on sell the drug to various people and account for the money that was made. The profits made from the on selling of the drug were to be divided between yourself and Rizzo alone. There is no doubt that the idea was to make as much profit on each sale of methylamphetamine that was possible.

12 You and other company members ran "the company" as if it were a legitimate business, in that, you either assisted with the manufacture by giving directions, or paying money out on behalf of "A" to others to whom he had given orders and then when the manufacturing process was complete you brought the finished product, and other available drugs. You with other members of the company monitored the quality of those drugs; stored the drugs until sold; cut and repackaged the drugs; marketed the drugs; and, through you, kept a book of account on The Company's customers and monies flowing in and out. Money paid out to various members of the company were itemised as expenses in these books of account and, as I stated, undoubtedly you all sought to make large profits.

13 The roles of the other members of The Company as outlined by the Crown in very brief detail, and which don't appear to be disputed, apart from your own level of involvement, are:

George Elias - confidant of "A" who spoke to him directly. His role was to receive and convert P2P to methylamphetamine and return the finished product to you, Mansour or Ferraro for distribution or safekeeping. He was paid in cash from the proceeds of the drug sales by you or Mansour.

Chaffic Issa - is the brother of Elias, his role was also to receive and convert the P2P to methylamphetamine and return the finished product to you, Mansour or Ferraro for distribution or safekeeping.

The Company's accounts (known as "the Raymond Weil"), as prepared by you, indicates that Issa received $1,236,500.00 from the proceeds of the drug sales from July 2006, until the date of arrest in June 2007.

Ferraro -involved in The Company from January 1, 2006 and was a drug courier and dealer. He provided the "safe" houses to store the large quantities of drugs, chemicals and drug money. Ferraro was paid in drugs and cash for his role in The Company.

Tricarico - was a drug manufacturer and confidant of "A", and it would appear also received instructions directly from "A" on occasions. Tricarico's role was to chemically convert Phenyl Acetic Acid to P2P or oil which would be delivered to you or Mansour for transfer to other members of The Company to continue with the remainder of the manufacturing process. Tricarico took over this role of manufacturing when his father "Max" died in February 2007. Tricarico received cash payments in excess of $40,000 cash on each occasion he completed this procedure.

Ryan - a student at university studying engineering. Ryan was also a confidant of "A" and equally dealt directly with him on occasions. Ryan was the "consultant" to The Company in relation to the quality of the methylamphetamine produced by Tricarico, Elias and Issa. Ryan undertook the role of improving the quality of the methylamphetamine received by you and offered to supply better quality chemicals to "A", in particular Methylamine gas. Ryan received large quantities of methylamphetamine as payment for his role in The Company.

Benedetti - was the supplier of cocaine to The Company.

Saro - assisted The Company by providing an on-call service for the safe storage and delivery for drug trafficking paraphernalia. Saro also assisted with the "cutting" and repackaging of large quantities of methylamphetamine.

14 You Mansour and Ferraro were all well known to each other having attended secondary school together. Equally you Mansour, Ferraro, Ryan and Benedetti all attended the same gym, where a number of the transactions actually occurred.

15 The Crown stated in their outline that the very generous profits generated by The Company's drug manufacturing activities were largely distributed to "A", or for the benefit of "A" through various avenues. You directly distributed monies realised from the activities of "The Company" to "A"'s interests including "A", "A"'s immediate family and associates. That money related to the profits made during the process of manufacture and selling to you and Mansour. However, the profits realised from the, on selling of the manufactured drugs and other drugs that were purchased, were distributed to you and Mansour. You were able to accrue that profit by using a cutting agent to decrease the concentration of the drug, thus resulting in more product being available to sell.

16 It is not clear if you received any of the profit related to the manufacture of the methylamphetamine and, accordingly, I will not act upon the basis that you have received any profit from that avenue. I will act on the basis that you made an unknown amount of money from the on selling of the drugs.

17 After the police ascertained the telephone numbers being used by you and other members of the company, in May of 2007, they were able to monitor some of those calls and there are at least 14 phones calls between 11 May 2007 and the date of arrest of 5 June 2007, between you and "A". In those calls there are varied discussions a number about "the bill" as the accounts are referred to, including "A" discussing with you about the need for an importation of drugs, and you discussing with him what and who needs to be organised to get that to happen. You discussed the bill with him in some detail at this point which was on 28 May, some eight days prior to your arrest.

18 You also had a discussion with "A" in which he gave you advice in respect of the undercover, about whom "A" was suspicious, including strip searching him, conducting anti surveillance techniques, not selling him above the commercial quantity so that you would not lose your house. The undercover informer was in fact subsequently strip searched.

19 The relevance of this material is in relation to what was submitted in your plea, that you were becoming less and less involved, trying to find a way out of your involvement, and that because of your drug usage you were no longer being trusted or included. I shall deal with that later.

20 The process that would occur in relation to the manufacture was that The Company's methylamphetamine was manufactured in two parts: First, "Max" would chemically convert Phenyl Acetic Acid (Phenyl) to Phenyl-2-Propanone (P2P or oil) - when "Max" died in February 2007, Tricarico, his son, took over. Subsequent to that process, Elias and Issa would do the conversion of that material by the process termed "gassing"

21 There was also a plan as to the distribution of profits of The Company. You and Mansour agreed that, after payment of other expenses, including $500 for each pound Ferraro stored for The Company, you would split the profits on a 50/50 basis.

There was a plan for The Company to make $6,000 profit on each one pound deal of methylamphetamine at a selling price of $48,000 (RHS3030 - PB585).
You and Mansour decided that you would dilute each pound of methylamphetamine with other substances (on a ratio of between one and eight ounces of "cutter" into every pound of "raw product" depending on the quality of the "raw product") before repackaging the drugs and on selling them for a profit.
During the time The Company operated its drug dealing activities, The Company sold or attempted to sell, at least, in excess of 42 kilograms of "raw" methylamphetamine
During the period January 1, 2006 and June 5, 2007, The Company was responsible for the distribution of, at least, in excess of 42 kilograms of methylamphetamine, with a wholesale value of approximately $4,200,000.00. The street value of the methylamphetamine was many times this wholesale value.
The arrangements for the distribution of profits to "A" were many and varied - some were the subject of various transactions at various financial institutions in and around Melbourne. Monies were either deposited into international Greek accounts or were exchanged for Euros and sent to "A" through other people. Additionally, large sums of money have been laundered and paid to "A"'s interests in Victoria. Other monies were paid to "A"'s family and associates. The prisoner arranged or personally attended to the distribution of profits, to "A", in these various ways.
You, together with Mansour, and others conducted The Company's business knowing that, for the vast majority of the time, "A" was a fugitive from the law - specifically since March 20, 2006. In addition, you together with the others did all that you could do to ensure that "A" remained a fugitive of the law during the operational period of this large scale drug syndicate.
During the period January 1, 2006 and June 5, 2007, The Company was responsible for the distribution of approximately ½ to 1 kilogram of cocaine with a wholesale value of approximately $245,000.00.
During the period May 3, 2007 and June 5, 2007, The Company was responsible for the distribution of approximately ½ kilo of MDMA with a wholesale value of approximately $90,000.00.
You and the other members of The Company utilised various practices in an attempt to avoid police detection when conducting their drug trafficking business including:

the use of code terms for people, places, drugs, weights and other items; 2. regularly changing their mobile phones and SIM cards;

the regular use of a variety of hire vehicles by various members for the transportation of drugs, drug money and drug paraphernalia;

the hire and use of hotel/motel premises to cut and repackage drugs; 2. the performance of anti-surveillance techniques particularly when driving around with drugs and drug paraphernalia; 3. the use of various places and storage facilities to store drugs, drug money and drug paraphernalia; 4. choosing meeting places for drug negotiations and transactions where there was no known surveillance or video devices in the area;
The Company's large scale drug syndicate began to unravel in April 2007 when one of The Company "employees", referred to as 3030 approached police and indicated his willingness to provide information about the activities of The Company. 3030 was a close friend of yours and you trusted him and it was that which enabled him to penetrate the levels of the company that he did. In early May 2007, 3030 was actively deployed by the police to gain further evidence and intelligence relating to the activities of The Company. RHS 3030's co-operation with law enforcement agencies enabled the agencies to:

identify the people involved in The Company's business; 2. identify the houses, hotels, storage facilities, cars utilised for The Company's business;

identify places such as financial institutions, properties acquired with illegally obtained gains, and meeting places relevant to The Company's business;

monitor some of the activities of The Company by utilising covert police surveillance operatives; 2. use recording/listening devices in cars, houses and storage locations to capture any potential evidence; 3. use telephone intercepts to capture any relevant conversations or communications between the offenders; 4. successfully introduce covert police operatives into the periphery of The Company activities to enable them to gather evidence surreptitiously; 5. led to the location and successful apprehension of "A" in Greece.
From May 1, 2007 to June 5, 2007, you were captured on numerous listening, recording and surveillance devices as well as numerous lawfully intercepted telephone calls. This material together with the evidence of 3030, formed a very strong case against you and a number of the other persons involved in the company such as Mansour, who has now pleaded guilty at an early stage, and cooperated extensively with the police and the Crown in providing lengthy statements of the involvement and participation of various accused, including you, in The Companies activities.
On June 5, 2007, police investigators arrested various members of The Company including you, searched numerous places of interest and seized a large amount of property, drugs over 1.1 kilogram of methylamphetamine and 3 ounces of cocaine, precursor chemicals and glassware and cash, in excess of $790,000.00. These arrests, searches and seizures by the Victorian police were synchronised with the arrest of "A" in Greece.
After your arrest on June 5, 2007, you indicated quite early that you would be pleading guilty to an appropriate presentment. I accept that you indicated a plea at the earliest possible time.

Count 1 - Trafficking Large Commercial Quantity Methylamphetamine at Melbourne (between January 1, 2006 and June 5, 2007)

You commenced your drug trafficking activities with what was to become "The Company" in or about January 2006 when you and Mansour agreed to "hold onto" two pounds of methylamphetamine for "A".
Onwards from that January 2006 period, you and Mansour each performed tasks of The Company as well as delegating other tasks to other people. You were both principal organisers in The Company. Mansour was the main point of contact for "A" for this drug trafficking enterprise, although you were also directly in contact with "A".
You arranged from the beginning for Ferraro to be the person who was responsible for storing the methylamphetamine and the MDMA, Ferraro would also collect deliver and repackage the methylamphetamine when required.
Your primary duty was to look after the books of account for The Company. The spreadsheet containing the accounting of The Company is known as "the Raymond Weil". Mansour would assist you with these books of account and arrange sales of methylamphetamine.

39. You would also assist others in the collection, storage, repackaging and delivery of the methylamphetamine.

40. In or about early January 2006, two pounds and one ounce of methylamphetamine was collected by you and Mansour from "Freddie", on behalf of "A", at a cost of $45,000 per pound; and the methylamphetamine was broken up by members of The Company into one ounce lots and sold for $3000 to $3200 per ounce.

41. Between January 2006 and July 2006, you and Mansour collected personally or delegated the collection of approximately 20 pounds of methylamphetamine from "Freddie" and paid between $45,000 and $50,000 each pound.

42. In around early July 2006, you and Mansour collected ten pounds of methylamphetamine from "Freddie" and paid $47,500 for each pound but the quality of these drugs was poor.

43. In or about late May 2007, Mansour had arranged for you and 3030 to deliver two pounds of methylamphetamine and $150,000 or $160,000 cash (drug money) to "the old man" in Lygon Street at "A"'s direction; but one pound of the methylamphetamine and $135,000 cash was returned to the prisoner a few days later.

44. In late May 2007, you, on behalf of The Company, sold 2 ½ pounds of methylamphetamine to 3030's mate (who was later identified to be police covert operative, Andy Hossack) for $114,000.00 cash.

45. In late May 2007, you personally attended upon Ryan whilst Ryan was actually in the process of improving the poor quality of the methylamphetamine for The Company (Mansour - Para 106 of the 53 page statement; Para 15 of the 34 page statement).

46. In late May 2007 you and 3030, sourced sophisticated and highly sought-after glassware (which was very difficult to acquire legally) to give to Ryan specifically for the manufacture of methylamphetamine; unknown to you at the time, the glassware was being sourced from Hossack, a covert police officer.

47. You regularly assisted others in the "cutting" of the "raw" methylamphetamine product and the repackaging of the methylamphetamine for resale.

48. These are but some examples of the sales of methylamphetamine in which you were involved

49. When the police searched the premises of those involved in the company they found a number of relevant items at various locations.

50. At your premises they located, in different parts of your bedroom, a total of over $180,000 in cash. Drug preparation items, such as vacuum sealers, cutting agents, scales etc multiple mobile phones, notes concerning "accounts" and the Raymond Weil account, hire car agreements, and drugs. Some of the monies located could be directly related back to undercover drug purchases approximating $80,000.

51. At Mansour's premises they found a much smaller amount of money, mobile phones furniture, a motor bike purchased for one of "A"'s children and jewellery. At Ferraro's premises they located drugs and also found further drugs located at his sister's premises. At Ryan's residence, drug money, and drug manufacturing and dealing paraphernalia was located. At Saro's premises, drug dealing paraphernalia was located and at Benedetti's, drug money, drugs and drug dealing paraphernalia, including over $100,000 cash. Elias' residence, drugs and drug manufacturing precursor items, also in the rented storage unit, the drug manufacturing glassware and items relating to manufacture of methylamphetamine. At Issa's, drug manufacturing items were located including nine empathy chemical drums. At Tricarico's, numerous documents related to manufacturing methylamphetamine, there had been $500,000 seized by the police earlier in May of 2007 from Issa which related to a self storage unit in Collingwood.

You and the others were all aware that you were conducting the company's drug dealing and money laundering activities on behalf of "A" and that he was a fugitive from the law, having absconded from his trial in the Supreme Court.

Count 2 - Trafficking Commercial Quantity Cocaine at Melbourne (between January 1, 2006 and June 5, 2007)

The trafficking cocaine side of The Company's business was almost exclusively conducted by you in that you purchased cocaine from Benedetti and then on sold it to others.
Between December 2005 and May 2007, Benedetti supplied you with over 40 ounces of cocaine. The vast majority of this cocaine was purchased by you on behalf of The Company; the remainder was acquired, also by you, as it was described by 3030, as your "personal side business".
The Company would pay Benedetti between $7,000 and $8,000 an ounce of cocaine.
You would on sell the cocaine for approximately $8000 for an ounce. Ferraro would also assist in the sale of cocaine.
Rizzo kept account of the purchased and sold cocaine.
Examples of cocaine transactions include the following:
1. The purchase of one ounce of cocaine by RHS3030 and Rizzo from Benedetti for $8,000 on May 23, 2007 - RHS3030 gave the cocaine to the police and paid for it with money provided to him by the police.
2. The purchase of two ounces of cocaine by police covert operative, Dowell, from Rizzo for $16,000 on May 30, 2007.

Count 3 - Dealt with approximately $4,200,000,00 Knowing it was Proceeds of Crime at Melbourne (between July 5, 2006 and June 6, 2007)

During the period 1 July, 2006 and June 5, 2007, The Company's gross turnover, for all of its drug trafficking activities, was described by the Crown as incalculable. However, a conservative estimate of the monies which changed hands in order to purchase the "raw" products alone is in excess of $4,200,000. An analysis of the Raymond Weil suggests that the amount was in excess of $4,500,000.
The arrangements for the distribution of monies to "A" were many and varied - some were deposited into banks and transferred to accounts associated with "A" in Greece, or were exchanged for Euros and sent with other people to "A" in Greece. Large sums were also laundered and paid to "A"'s interests in Victoria and other monies were paid to family members.
I do not intend to list them all, but the amounts which have been relied upon by the Crown in the transactions they have referred to in their outline of the case against you total in excess of $4,000,000. The large bulk of this was supplied to "A" in Greece. This material only dates from the period 1July which was when, it would appear, that the Raymond Weil came into existence. A lot of this material is in fact recorded on the Raymond Weil, and other information comes from the statements of Mansour and 3030, together with material that has been tracked and checked by the investigating officers.
The prisoner, together with various members of The Company, dealt with the proceeds of the drug dealing business in various ways. Some of those dealings are set out in Paragraph 33 above.

Count 4 - Trafficking commercial quantity of MDMA at Melbourne (between May 3, 2007 and June 5, 2007)

When it was difficult to source cocaine from Benedetti, The Company sought to expand its business by offering to its customers another drug; ecstasy).
On June 5, 2007, when police arrested the prisoner and other members of The Company and searched and seized property, the police located amounts of The Company's ecstasy (MDMA) at Ferraro's sister's residence at 43 Ancona Drive, Mill Park, the amounts were contained in four separate bags and contained a total of 1124 grams of MDMA with a purity ranging from 20 to 90 per cent.
The wholesale value of the MDMA trafficked was in excess of $200,000.

66. When you were arrested you exercised your legal right and declined to participate in a recorded interview.

67. In relation to your prior conviction you and another male were intercepted for not wearing a seatbelt and when asked to produce your licence you produced a licence in the name of another person, that was not accepted and you were again asked and on that occasion produced your correct licence. When you were asked to get out of the vehicle you did something in an area of the car that caused the police to become suspicious and upon searching that area they found a small semi automatic pistol loaded with copper hollow point bullets. There were two foils of methylamphetamine found in the front console of the vehicle. You pleaded guilty to the offences. These offences occurred over a very long period of time, from 1 January 2006 until your arrest on 5 June 2007, a period in excess of 18 months. You and your co-offenders were continuing these offences and it was only the intervention of police and your arrests that caused the offending to stop.

68. At the time that you became initially involved in the offending you were aware of who "A" was, his reputation for involvement in the criminal underworld, and the fact that he was due to face trial for alleged involvement in importing drugs into Australia.

69. In other words you and your co-offenders went into this with your eyes open, you were not coerced or tricked or beguiled into becoming part of this drug dealing operation. I have yet to understand the psyche that makes people such as "A" or those like him someone that ordinary or law abiding people would wish to associate with for any period of time. There is in my view some glorification of people of this type by the media, they are made "famous" by the constant reporting of their activities, criminal or not, to the public at large. There is no doubt that "A" was notorious at the time at which you initially became involved with him, and that notoriety only escalated with time.

70. At the time that "A" absconded from his trial you did not have contact with him for some months, despite that fact, you and your co-offenders continued to source the methylamphetamine from "A"'s contact and sell it to those wanting to use this drug.

71. All drugs are dangerous and this drug is no exception. Illegal drugs cause untold misery in the community, they promote and encourage crime, as desperate persons seek to make enough money to continue to be able to purchase and use those drugs. The health issues associated with drugs are high also, and in this case you had a large batch of the drugs that were to your own knowledge making the consumers of the drugs quite ill, but you continued to sell those drugs with that knowledge.

72. The level of drugs manufactured and sold by you and your co-offenders is at the high end of the scale of large commercial trafficking. The amount that constitutes large commercial quantity is one kilogram of mixed substance methylamphetamine - drug of dependence. In this case you have at least 42 times that quantity, you are not slightly or a little over the minimum to constitute the offence, but have exceeded that minimum many times over. The person who was the major beneficiary of this manufacture and sale was a known drug dealer, and then ultimately a fugitive from justice, and your assistance in the manufacture and trafficking of this drug enabled him to continue to be a fugitive from justice, and also for you to live a life that you obviously for some reason wished to pursue.

73. This is offending at a very high level in respect of trafficking of drugs at a large commercial quantity, as must also be said about the money laundering, comprising as it did over $4.2 million of illegally begotten money, which was distributed to many and enabled the flight of "A" to continue, obviously buying people's loyalty and silence. You are not to be punished for anything to do with the escape of "A" as you are not charged with any offences relating to that matter, but your involvement has undoubtedly had those consequences.

74. Whilst the matters that I have referred to are important, I also have to take into account your personal circumstances, when determining an appropriate sentence to be passed in this case.

75. As I indicated, you are now aged 30, you are not married, but have been in a relationship for a relatively lengthy period of time, although that was interrupted at one stage.

76. You are the eldest of three children, your parents are still together and run a bed linen and gift shop in Templestowe, you were working for them at some stage prior to this offending occurring, but not at the time due to motor vehicle accidents that occurred in 2003 and 2005.

77. You have a younger brother and sister, and I do not understand any of the family members to have had any history of police attention.

78. You were found to have a problem with your weight from a very young age, your mother giving evidence that at the age of eight weeks you were found to be overweight for your age. You have always been larger than other children and according to your mother you have been teased over this and got into fights at school, she described you as becoming more aggressive as you got older. You ultimately attended Whitefriars College for your senior schooling and performed well enough to be accepted into a business management course at Swinburne University at the Lilydale campus. This was a three year course of which you completed 2½ years before dropping out.

79. Your mother described you as very intelligent but stated that you caused problems at school in that you were disruptive. You were diagnosed in year 12 with Attention Deficit Hyperactivity Disorder and placed on dexamphetamine for 12 months. She said that you were a responsible and caring older brother and that it was your obesity that ultimately caused you many problems including dropping out of your course.

80. You then went to work for your parents as a sales assistant and were involved in the merchandising aspect of the business. Your mother described you as brilliant with the customers and that she had excellent feedback about your performance within the business. It was in approximately 1999 that you joined the business and continued on with that until a motor vehicle collision in 2004.

81. In 2003 you were involved in the offending to which I have earlier referred. Your mother stated that she was totally unaware of your involvement in drugs at that stage, and you saw a solicitor and ultimately through that solicitor referred to Mr Joe Lamberti a drug and alcohol counsellor. After the referral you were ultimately placed on twice weekly blood tests for drug screening. As I understand that persisted for a period of three months.

82. At around that time you also sought assistance about your weight, and according to the information provided by Dr Peter King, in his report and his oral evidence, you attended upon him in September of 2003 in respect of the problem of morbid obesity. You had been on a weight reduction program on prior occasions, and there had been consideration of having a gastric banding type of operation previously but that had not occurred. At the time that you attended on Dr King, you had been on a weight loss program with your previous GP during the previous three months using Reductil, and had lost some 12 kilograms, but were suffering what you believed were side effects. Dr King's clinic was across the road from your parents shop, and he prescribed Duromine and diet and exercise and you attended regularly for the next seven months and had lost 35 kilos in the 30 weeks reducing you to 123 kilograms.

83. You were seen on 19 June 2004 the day after a motor car collision, you were treated with anti inflammatories and physio and returned to work in 2004.

84. I have no information about what occurred in respect of your weight at that time, and whether you continued on the weight reduction program after your return to work. On 6 September 2005, you again were involved in a motor vehicle collision, you received no fractures, but complained of back and scapular pain. From that time on you developed further pain in the thoracic back, neck and shoulder regions, x rays demonstrated some degenerative narrowing and by November you were complaining of right shoulder pain limiting the use of your arm. You attended rehabilitation therapy and referred back to work in February of 2006 and you reported increased shoulder pain on your attempt to return to work. From that time you were referred to a further rehabilitation program which you commenced in March of 2006, you complained that the pain worsened as a result of the rehabilitation and you were prescribed strong pain killers, being oxycontin at 20 mg. The back pain had subsided but your shoulder pain had increased and by September of 2006 you were seen by Mr John Salmon an orthopaedic surgeon who diagnosed a sever injury to the shoulder in October 2006 after an MRI had been performed. By November 2006 you were having increased shoulder pain and went back onto oxycontin. An arthroscope was performed which confirmed severe articular wear with loss articular cartledge. With the possibility of a joint replacement surgery, you were again referred for therapy and attended Donvale Rehabilitation Hospital twice weekly for that therapy, but made little progress. You were placed on 5 mg of endone to assist with the pain and 20 mg of oxycontin, which increased to 40 mgs of oxycontin on 30 May 2007, shortly prior to your arrest.

85. Since you have been in custody you have trouble in stabilising on the right medication, as oxycontin, being a morphine based substance is not used in the prison system, and you have been placed on methadone, a morphine replacement system, you are currently on an amount of 175 mgs, which is higher than average for pain relief. I accept that you have a number of health issues, most of which are related to your morbid obesity or your motor vehicle accident, including sleep apnoea, anxiety and sleep disturbance, together with constipation from medication, pain from shoulder injury requiring heavy medication and a degree of depression.

86. In relation to your health I heard evidence from your mother - Maria Rizzo, your general practitioner when you were at liberty - Dr. Peter King and Dr. Bruce McClaren who has been the person mainly responsible for your treatment whilst you have been in custody.

87. It has been difficult to manage your medication in the prison system, but I am satisfied that the current arrangements are sufficient, they are not perfect, but it is difficult for anyone to have ideal health services provided, even if they are at liberty in the community. The authorities are aware of your medical issues and are doing all that they can to assist you in respect of those health issues but I do accept that you suffer from poor health as I have outlined earlier..

88. I also accept that your poor health will require that you be kept in circumstances in prison that will not be the normal environment, and more like a punishment regime, which is similar to the circumstances under which your co offender Mansour is detained, albeit for different reasons, his being protection based, due to his provision of evidence to assist the authorities. I have been provided with information fromt he authorities as your placements over your time on remand and it confirms that you have been held under more onerous circumstances than a normal prisoner. That is a matter that I will take into account in determination of the appropriate penalty.

89. Your counsel submitted that you occupied a role subservient to both "A" and Mansour and that accordingly you should receive a sentence that, without taking into account the significant discount that Mansour received for his co operation and undertaking to give evidence, would reflect that lesser role. I do not accept that you had a lesser role as I have already outlined. You were both integral to the success of this organisation, and although you played different roles, I find that your culpability was essentially of the same level. Accordingly the sentences that I impose will reflect that fact.

90. Your counsel submitted that I should take into account that as a result of your activity in this matter you have been financially penalised in that your grandmother gifted to you her interest in her home, and you took out a loan in respect of the balance, the property is of course forfeit and as a result you have lost the $180,000 gift that your grandmother provided to you upon her entering into a nursing home. I have read an affidavit prepared by your grandmother, and I accept that is the correct situation, and will consider that matter when imposing sentence.

91. In relation to what was claimed to be your dependence upon cocaine and a very substantial addiction to that substance, which it was submitted was your major motivation for involvement in this activity, I do not accept that as being accurate. I do accept that you used cocaine, and prior to your arrest in larger quantities, but I do not accept that this was the primary reason that you became involved in this drug trafficking activity.

92. Some of the reasons relating to this are that during this lengthy period of time you were attending your medical practitioner, and he saw no signs of that addiction, your family saw no signs of that addiction, although you saw them on a regular basis. You were gaining weight, not losing weight which Dr. King agreed would have been more consistent with continued heavy use of a such a drug. You had long and intelligent discussions with "A" about the accounts of the company and you were able to maintain those accounts and assist in controlling the company.

93. Further I do place some reliance upon what is contained in the transcript of a discussion you had with a person referring to ways that you beat the legal system, and referred to what you maintained that you did on your last court case, including a reference to playing the "loony card" and telling the court and the psychiatrists that you were committing offences because you were fat and drug addicted, and cheating upon your drug testing by ingesting all manner of illegal substances the night before and then immediately after the testing had been performed, not taking any more drugs thus demonstrating that you were rehabilitated. Your counsel described that as nothing more than big noting, and submitted that it was evident from the evidence that you were using a lot of drugs. It is most unfortunate but it contained too many accurate references to how a court may respond to situations such as yours for me to dismiss it as mere big noting.

94. I do accept that that you were using drugs, but I do not agree that your were using the level of drugs that you claimed and certainly not for the amount of time that you claimed. Even if you had been a drug addict of the level submitted, it would be no more than an explanation of your behaviour, it certainly would not excuse it. It is my view having examined these materials that the cocaine was more of a bonus that came with the business, than a reason for getting involved in this nefarious activity.

95. Your counsel submitted that your prospects of rehabilitation are very good as indicated by your circumstances of only having the one prior conviction, your plea of guilty, the fact that you have undergone drug rehabilitation courses in prison, that your drug screen urines have been clean except for drugs prescribed by the authorities in prison. He submitted that that you had been desirous of ceasing your involvement in the offending prior to being caught. That you were 27-28 at time of offending and are now only 30 years of age and that you have very strong family support as well as very wide community support.

96. You have pleaded guilty at an early stage, and that can be used as a possible indicator of remorse. I find that you have some remorse for your actions, but I am not satisfied that you are genuinely or overwhelmingly remorseful about your trafficking of drugs, but more remorseful over being caught and the consequences of that having happened. You were recorded as enthusiastically discussing with "A", some 8 days prior to your arrest, the prospect of increasing your activity in the drug world by becoming involved in an importation of drugs, as there was a shortage at that time. I do not accept accordingly that you were attempting to withdraw from your involvement in the offending.

97. I agree that you have a strong level of family support, and wider community support available to you upon your release, but having listened to your mother give evidence, I am not entirely confident that her support will really assist in the ways that you need assistance. She appeared to refuse to accept that you had done anything really wrong, and that in her view from the moment of your arrest and detention you have been treated appallingly. Whilst I accept that mothers care deeply for their children, I was concerned by her attitude towards you, which seemed to be that nothing was your fault, and she appeared to view you still as a young child who needs protection. You are an adult who is 30 years of age, and you need to start taking responsibility for your actions, which were prolonged and deliberate.

98. I find that you have moderate prospects of rehabilitation, but you will need to overcome what appears to be your self absorption and accept responsibility to enable your rehabilitation to occur.

99. I have to balance all of these matters to which I have referred with the circumstances of the offending, which was of long duration, and of a very high level of criminality. As I stated to your co offender Mansour, who I consider to be on the same level of criminality as you

although you are not of the same level of criminality as "A", your activities, together with those of your co - offenders. Allowed this large drug trafficking organisation to continue and flourish, even after the departure of the person at the head of that organisation.

Without your assistance and that of your co - offenders over an 18 month period, "A" may well have been starved of the resources necessary for him to flee the country, and maintain a life on the run in relative comfort. There would have been at least 42 kilos less of methylamphetamine on the streets of Melbourne, and less young persons corrupted by these drug with their appalling consequences.

Parliament has imposed very high penalties for the offences to which you have pleaded guilty. In the case of large commercial quantities of methylamphetamine it is life imprisonment.

I am bound to have regard to the high terms that parliament say are appropriate for offences of this nature. This is not a worst case scenario, but it one that certainly reaches towards the higher end of the range of cases within that category.

Equally, the offence of dealing with the proceeds of crime also comes into that category. When the absolute minimum figure involved is $4.2 million, the punishment imposed must be significant, whilst being moderated as required, by other factors to which I have earlier referred in mitigation.

100. Taking into account all of the matters to which I have referred and also considering the principle of totality I impose the following sentences:

Count 1, trafficking in a large commercial quantity of methylamphetamine you are convicted and sentenced to be imprisoned for 13 years and 6 months

Count 2, trafficking in a commercial quantity of cocaine, you are convicted and sentenced to be imprisoned for a period of 3 years 6 months

Count 3, dealing with the proceeds of crime, you are convicted and sentenced to be imprisoned for a period of 6 years

Count 4, trafficking in commercial quantity of MDMA, you are convicted and sentenced to be imprisoned for a period of two years.

101. I direct that Count 1 is the base sentence and that one year of the sentence imposed upon Count 2 is to be served cumulatively upon the sentence imposed on Count 1, and that 18 months of the sentence imposed on Count 3 is to be served cumulatively upon the sentences imposed on Counts 1 and 2, making a total of 16 years imprisonment. I direct that you are to serve a minimum term of 13 years before becoming eligible for parole.

102. I am obliged pursuant to s 6AAA to indicate what sentence would have been imposed if you had not pleaded guilty to the offences, it is a highly fraught exercise, particularly in a matter such as yours, in which the case against you would best be described as overwhelming. In relation to the sentences I have imposed, you would have received an additional three and half years imprisonment. I do not intend to break up the individual sentences that I would have imposed, but in arriving at that figure I have performed the calculations both as the actual sentences and minimum term that I would have imposed.

103. You have served 615 days pre-sentence detention and I direct that such be noted in the records of the Court.

I certify that this and the 24 preceding pages are a true copy of the reasons for sentence of King J of the Supreme Court of Victoria delivered on 9 February 2009

At a glance

Court

Decision date

Before

Source

Judgment (111 paragraphs)

Parties