R v Saro [2009] VSC 569

2 In relation to this matter the Crown prepared a Crown opening which was tendered on the plea and became Exhibit 1. Your counsel also tendered on the plea a document which was part of Exhibit 2 which was headed "Crown opening agreed to by defence incorporating additional evidentiary material relied upon by the accused". The opening is really divided into two parts. One refers to the general facts relating to the organisation known as "The Company", and the other part to your role of aiding and abetting Rizzo and Mansour and Ferraro. I do not intend to recite much of the detail of the summary of facts presented by the Crown in relation to the general aspect as that matter is contained within the written summary and a lot of it has very little to do with you. I shall attempt to keep this section relatively brief.

3 The Company was involved in the manufacture and distribution of very large quantities of methylamphetamine as well as the trafficking of MDMA and cocaine. It was also involved in large scale money laundering. The ten other men alleged to be involved in The Company's activities are Antonius Mokbel, Joseph Mansour, Bartholomew Rizzo, Christopher Ferraro, George Elias, Chafic Issa, David Tricarico, Andrew Ryan, Robert Benedetti and Byron Pantazis. The Company was named that in about July 2006. It was controlled overall by Mokbel, initially whilst he was in Australia and then subsequently from Greece from 1 January 2006 until 5 June 2007. Persons became involved at different stages. Mokbel organised the manufacture of large quantities of methylamphetamine and guaranteed a market for the sale and distribution of methylamphetamine by bringing in Mansour and Rizzo who, with the assistance of others, cut, repackaged and onsold the methylamphetamine to the various dealers and users down the line. This was initially done through a man named Freddie or Abdallah Radi, whose role was taken over by Chafic Issa at a later stage. There was a two-part manufacturing process which involved the services of Tricarico and initially Tricarico's father and in the second part, Elias and Issa. Ryan was a person who was not only a customer, but assisted, in respect of the quality of the manufactured product.

4 The Company was run as though it was a legitimate business, with records being kept of the books of account on a computer, that was known as the Raymond Weil. Mansour and Rizzo were trusted confidants of Mokbel. There is absolutely no evidence that you were aware of, or had anything to do with, Mokbel or Mokbel's other representatives, Issa, Elias or Pantazis. It is agreed, you had nothing to do with Benedetti, who was involved in the cocaine part of The Company, and nothing to indicate any involvement in the MDMA.

5 "The Company" was a term coined by Mansour and Rizzo to describe the large illicit drug trafficking enterprise they were running on behalf of Mokbel. In fact, "The Company" was so called in or about July 2006 when Elias and Issa assumed involvement in this particular Mokbel drug trafficking enterprise.

6 In summary, this drug trafficking enterprise operated in the following way.

7 Mansour and Rizzo were trusted confidants of Mokbel. They were the principal organisers of The Company. They were directly involved in the money laundering and drug preparation and distribution. Most often, they received and acted upon the instructions of Mokbel. Those instructions were usually provided through telephone communications between Rizzo and Mokbel or between Mansour and Mokbel. Rizzo and Mansour maintained telephone contact with Mokbel with the use of a designated "safe" phone. Rizzo and Mansour shared possession of that "safe" phone. They would either attend to The Company's drug business themselves or would delegate it to others.

8 The monies owed by The Company to Mokbel for the purchase of the methylamphetamine, were either paid directly to Mokbel, or disbursed as directed by him. Rizzo directly distributed monies realised from the activities of The Company to Mokbel's interests, including Mokbel's immediate family and associates.

9 There was also a plan for to the distribution of The Company's profits whereby Rizzo and Mansour agreed that, after payment of other expenses (including paying Mokbel for the drugs and the payment of $500 to Ferraro for each pound he stored for The Company), they would split the profits on a 50/50 basis.

10 During the period January 1, 2006 and June 5, 2007, The Company was responsible for the distribution of, at least, in excess of 47 kilograms of methylamphetamine, with a wholesale value of approximately $4,700,000.00. The street value of the methylamphetamine was many times this wholesale value.

11 In addition, 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 $200,000.00.

12 In addition, during the period May 3, 2007 and June 5, 2007, The Company was responsible for the distribution of in excess of 1 kilogram of MDMA, with a wholesale value in excess of approximately $200,000.00.

13 Rizzo and Mansour, and some of the others involved in the activities of The Company, were very police savvy. They utilised various practices, in an attempt to avoid detection by law enforcement authorities, when conducting their drug trafficking business.

14 The Company's large scale drug syndicate began to unravel in April 2007, when one of the persons involved in the illegal activities of The Company, Registered Human Source 3030, approached police and indicated his willingness to provide information. In early May 2007, 3030 was actively deployed by the police to gain further evidence and intelligence, relating to the activities of The Company. 3030's co-operation with law enforcement agencies, enabled the agencies to ultimately bring the manufacturing and trafficking to a close, and arrest those involved in the matter.

15 On June 5, 2007, police investigators arrested various people involved in the activities of The Company including you. Police searched numerous places of interest and seized a large amount of property, drugs (including over 1.4 kilograms of methylamphetamine and 3 ounces of cocaine), precursor chemicals and glassware (glassware valued in excess of $500,000.00) and cash money (in excess of $790,000.00). These arrests, searches and seizures by the Victorian police were synchronised with the arrest of Mokbel in Greece.

16 The particular offence to which you have pleaded guilty is that of Trafficking in a Commercial Quantity of Methylamphetamine at Melbourne between April 13, 2007 and June 5, 2007. The Crown have put your participation, on the basis of being an aider and abettor. You had no involvement in the cocaine or MDMA drugs of The Company.

17 You were a long time friend of Bartholomew Rizzo. In the lead up to April 13, 2007, you had been a regular visitor at the Rizzo home. At this time your mother was undergoing treatment for cancer and this friendship provided you with support. You were at the home to help Rizzo, in respect of his home renovations; and for this work, you were often paid in drugs, but occasionally in cash.

18 On or about April 13, 2007, Horty Mokbel (brother of Antonios Mokbel) was arrested by Victoria Police for "unrelated" drug matters. As a result Antonios Mokbel, Mansour and Rizzo became nervous about the activities of The Company, as they existed at that time, and they determined to change the way they handled certain of the drug transactions.

19 One of the changes made to The Company's activities was, your introduction and participation. Rizzo gave you a sports bag containing drug cutting and packing material, with a view to keeping it in a different and safe place, away from his house. The Crown described that you were to provide an on-call service - that is, to produce and deliver the sports bag and contents, as and when required by Rizzo. It was agreed on 13 April, that from that time on, you were to be in charge of this item. Between 13 and 15 April you were given the bag. Removing this equipment from Rizzo's house was not the only measure The Company took. Prior to 13 April, Ferraro generally stored The Company's drugs, but Rizzo would also often have drugs at his house, pending their distribution. After 13 April, Rizzo and Mansour also decided to ensure that any large quantities of drugs would no longer be stored, even temporarily, at Rizzo's house. Ferraro continued to perform the role of storing drugs on behalf of The Company.

20 On four specified occasions you produced the sports bag containing the drug cutting and packaging materials. Upon request of Rizzo, you also booked hotel rooms which were to be used by The Company to cut and package methylamphetamine, and on one occasion collected drugs.

21 The Crown referred to the specific detail of those transactions as follows:

(a) On 13 April Rizzo decided that they should get away from his house for a few days. You booked a room in person at the Clarion Hotel, using as I understand it, your own name and contact details. Three nights' accommodation was paid for in cash. You and Rizzo stayed at the hotel for these three nights, returning to Rizzo's house during the day. On 15 April you, Rizzo and 3030 were in the hotel room, when Rizzo cut and packaged a quantity of methylamphetamine using the mixing equipment from the sports bag. Some of the methylamphetamine was cut with an agent, resulting in one bag of "diluted" drugs which weighed about 1 pound. The Crown say that you were, by that time, in charge of the bag containing the mixing equipment.

(b) On 23 April, RHS 3030 met with Rizzo, Mansour and you at TGI Friday's restaurant situated at the Doncaster Shoppingtown. During the course of the conversation you and Rizzo stated you were expecting Ferraro to arrive shortly with a consignment of drugs. It was your intention to go and book a room at the hotel over the road from the shopping centre where drugs would be cut up for sale. The deal was expected to take place later that night. RHS 3030 then left the restaurant, leaving Rizzo and you waiting for Ferraro. You booked and paid for a room in cash, in person at the Hotel Shoppingtown, opposite the Doncaster shopping centre at 10 pm that evening. It is the prosecution case that the room was used that night to cut and package drugs, and that you provided the bag containing the mixing equipment. The Crown conceded that there is no evidence that you either participated in the preparation of the drugs yourself, or was present while this was done.

(c) On May 9, 2007 you had been present at Rizzo's home carrying out labouring work related to the renovations. Rizzo had been awaiting the delivery by Ferraro of methylamphetamine, but Ferraro was running late in making this delivery. At that time, Rizzo was supervising the performance of work by building contractors and he asked you to drive to a park in Templestowe near where Ferraro resided, to collect drugs from him. You did as you were asked and returned to Rizzo's house with a bag containing one pound of methylamphetamine.

(d) In the late afternoon on 9 May, Rizzo booked a room at the Tudor Serviced Apartments, situated at 1080 Whitehorse Road, Box Hill. Rizzo and RHS 3030 attended there that evening. They had with them the methylamphetamine. You arrived and produced the sports bag containing the mixing equipment. The bag was unpacked, the drugs were put on the table and everything was set up. You, Rizzo and RHS 3030 used some amphetamine, before you left the apartment. You were present for about 15 minutes. Rizzo then cut and mixed the methylamphetamine and formed two 1 pound bags of drugs.

(e) At about 9.00 p.m. on 29 May, RHS 3030 and Rizzo travelled to your house and collected the sports bag containing the mixing equipment. Later that night Ferraro dropped off a bag containing a large quantity of drugs to Rizzo's and Rizzo then set about cutting and bagging the methylamphetamine.

(f) Your counsel relied upon the evidence from RHS 3030 that on 25 May 2007, Rizzo produced the maroon sports bag with the drug cutting and preparation equipment, without you being present, or being the person who produced it. The Crown concede that this is what the evidence discloses, but I do not accept that such evidence establishes a lack of involvement on your part. This is a continuing activity, as can be seen by the fact that four days after 25 May, you were once again in possession of the sports bag containing the equipment. All that evidence establishes is, that not all of your activity in respect of the sports bag was either observed or remembered by the other participants. Whilst I do not intend to sentence you upon any form of guesswork, the inference that you had a continuing involvement in picking up and delivering the bag to Rizzo, as required during that time, is clearly open and I am satisfied that it is the only reasonable inference open. I also accept, that on occasions, Rizzo kept the sports bag himself and did not return it to you for safe keeping. In fact, the bag was found under Rizzo's bed on the day of his arrest on 5 June 2007.

22 On June 5, 2007, your residence at 26 Baradine Street, Donvale was searched by police, where the following item were located: a Nokia mobile telephone with Optus number 0403647611 (registered in false name and false address) located in the bedside table in the bedroom occupied by Saro. Only three numbers are recorded on the SIM of this phone (1) Me 0403647611, (2) Orange 2 0449189763, (3) Orange 0420806286. Both Orange 2 and Orange phone numbers have been identified as Rizzo's numbers, registered in false names. SIM cards for these numbers were located by police at Rizzo's address, on that same day. Rizzo was referred to as "Orange" within The Company, from April 2007. There were voice and SMS communications between this phone and the Rizzo numbers on 12 and 29 May, and 1 and 2 June 2007. The prosecution argue that your use and possession of this phone was in furtherance of your role in The Company's drug trafficking.

23 Your counsel submitted that there is no evidence that this particular phone was used in furtherance of your role in The Company's drug trafficking. I am satisfied, that the phone was in your possession for precisely that purpose. To suggest otherwise, when it was found on your bedside table with only three numbers in its memory, being "Me" and two numbers for Rizzo registered in false names, is ludicrous.

24 No other drug related paraphernalia and no drugs associated with the operations of The Company were located at your address.

25 On 5 June 2007, you answered "no comment" to questions asked by the police in a formal interview. You were not charged and were released by the police. You were re-arrested on 6 December 2007. When questioned by police on that occasion, you answered "no comment" to allegations of being involved in drug trafficking with Rizzo, Mansour and others. You admitted to having previously been a user of speed, but said that you gave up "six months ago" to make your mother, who had cancer, happy.

26 An analysis of the "Raymond Weil" spreadsheet shows that as at June 5, 2007, $2,350 worth of methylamphetamine had been provided to you. There is no evidence that you received any financial payment for your involvement in the offence.

27 You do not have any prior or subsequent convictions, and the Crown concede that, whilst the plea has not been entered at the earliest stage, there have been serious discussions since late last year with a view to you pleading guilty to the current count. Since that time, the discussions have turned upon the terms.

28 I also have to take into account your personal circumstances. You were born in Melbourne on 17 October 1981 and are now aged 28, the offence having been committed when you were aged 25 years. You have two siblings, Jason aged 22 and Elisabeth aged 18, both reside with you and your mother in the family home. Your parents aged 54 and 50 separated in September 2006.

29 You attended a local catholic primary school, then Emmaus College in Vermont South and Whitefriars College in Donvale, discontinuing your secondary education part way through year 11. You then went to work for your father, who had an Optus mobile phone outlet in Brunswick Street, Fitzroy, in 2000, and stayed working there until your parents' breakup in September 2006. From then you did not work again, until you commenced doing some casual gardening work for Bart Rizzo, some time in March through until June of 2007, at which stage Rizzo and the others, including yourself, were arrested and interviewed. You were released and shortly after that time, in July 2007, you commenced working for your uncle at Quality Roads Asphalt Paving, which continued until you were arrested again on 6 December 2007 and remanded in custody. Your bail was granted on 19 January 2008. You returned to that employment with your uncle upon your release and remained in that employment until you were remanded in custody on 4th September 2009.

30 Your uncle gave evidence before me that you were a very keen, competent employee who was willing to learn and appeared happy in your employment. I accept that evidence. He also gave evidence that he believed your actions, in respect of this offending, to be out of character for the person he has known since you were born.

31 You have a girlfriend who you met in 2004 and have been romantically involved with since November 2007, until current times. She also gave evidence before me that indicated that you were keen to have a future together and that she was strongly supportive of you.

32 You have many friends and supporters who came to Court to give evidence on your behalf and who have been loyal and caring friends, both before and since your offending became known. The same could be said for your family, who have all rallied to your support, including your father.

33 It was submitted that at the time of the offending you were distressed and somewhat depressed over the situation that had occurred between your parents. In late 2005 your father was diagnosed with diabetes and neuropathy and was unable to continue running the business. He was hospitalised for two months and your mother, who also had worked in the business, stopped her involvement to look after him. You ran the business during that next year, until September 2006, with the assistance of other long term staff. In September 2006 your parents had been out for the evening and upon returning home, an argument developed between your parents, your father having consumed some alcohol, and upon hearing raised voices you went to assist your mother. There appeared to be some pushing and shoving and ultimately your father went upstairs, packed his bags and left the house, and the marriage was at an end. It would appear that this was a fairly sudden turn of events. You immediately left your father's employ and never went back to work for him again. Your mother said that you remained in your room and barely socialised with the family or anyone else, going out to the shops occasionally to buy cigarettes. It appears that you had no form of income and your mother supported you during that time.

34 Your counsel submitted that you had used speed and cocaine, in his words, "recreationally" during your teenage years and into your early twenties. That does not really provide me with the information necessary to make any real assessment of what your drug usage was during those times, nor when it really started or stopped. I have been able to glean some material from the evidence of Mr Joe Lamberti, a drug counsellor, who you started attending in January 2008 as part of your bail conditions. He stated, that you told him, that you started smoking marijuana and using alcohol when you were about 15 or 16 and at 22-23 started attending nightclubs and dabbling with cocaine, amphetamines and ecstasy, but not what he would call intensive use.

35 He further gave evidence that you told him, that for a period of four months after your parents break up, you only came out of your room to go and obtain drugs, you said that you were using speed between four to five times a week and often daily. You equally were able to stop using drugs immediately upon being arrested in June 2007, although you were never incarcerated at that time, which indicates either a great deal of will power, or a lack of serious addiction to the drugs.

36 Your mother gave evidence before me that she spoke to Bart Rizzo's mother, on the basis of the families having been long term friends, and Rizzo's mother suggested that he may have some labouring work that you could do, to try and get you out of the house, and involved in something. You agreed, spoke to Bart Rizzo and ultimately commenced working for him doing labouring and landscaping at the house he was renovating. You were an old friend of Bart and this work commenced in the March/April period of 2007. As indicated, your involvement in respect of the offending commenced from the day in April when it was suggested that you retain custody of the drug cutting bag and you agreed to do so. You were aware of why you were to hold the bag, which related to a fear of being run through by the police after someone had been arrested.

37 Whilst I accept that you may never have been involved in committing a crime of this nature if you had not been asked to do this by Bart Rizzo, it is not possible to only blame others for the choices that you make. The point about being a good citizen of any community is that one must constantly make choices about your own behaviour, decisions such as, I will not use illegal drugs, or I will not drink and then drive a motor vehicle, or I will walk away from an argument, all of those matters are choices that we make as citizens, and the law says that you will be punished if you make choices that involve criminal wrongdoing. Even accepting that Rizzo was a bad influence upon you, the major responsibility for your involvement in criminal activity can and must rest with you.

38 I have the evidence from your mother as to what you were like after your father left. I find it somewhat conflicting with other material that you told Mr Lamberti and Mr Ian Joblin, Psychologist. Your mother was diagnosed with bowel cancer in April/May of 2007 and although she indicates that you undertook things to help, it was equally clear from her evidence and that of her cousin Kathy Antoniadis that, on the day she was diagnosed with cancer, Ms Antoniadis moved into the home to help and support the family. Ms Antoniadis described you as being locked in your room, and rarely participating with your family during that time, only leaving to go to Bart Rizzo's place. Whilst I accept that you were upset about your mother's health, it did very little to divert you from using your drugs and being involved in the trafficking, or to get you to assist and participate in the life at your home.

39 In the report of Mr Joblin dated 21 July 2009 he stated at paragraph 8C:

Unfortunately in April 2007 at a time when Mr Saro had been seeing Mr Rizzo, his mother was diagnosed with cancer. She immediately had an operation and then began chemotherapy in May 2007. One notes that that diagnosis was made two months prior to the end of Mr Saro's involvement in these matters. He reported that that diagnosis caused him significant psychological upset, to the point where he continued to use amphetamine and continued to associate with Mr Rizzo. He would also try to assist his mother by taking her to various appointments. Mr Saro acknowledged that this was a time of considerable distress.

40 I am not confident in the explanation provided as to the reasons for your ongoing use of drugs and, particularly, I do not accept the explanation put forward for the continuation of your involvement in both drug usage and trafficking.

41 Your counsel has submitted that in relation to those involved in this offending, you are in the lowest category. I accept that submission, but your involvement was over a continuing period and was only stopped by the intervention of the police in breaking up this group. Therefore, whilst I accept that your offending is the lowest level of this group of offenders, it does not make it in any way at the lowest level of offending for offences of this nature. There are many examples of offending, relating to this type of offence, that are of a lower level of criminality than yours.

42 Further your counsel has submitted that a sentence of imprisonment wholly suspended would be an appropriate sentence in this case. I cannot agree that it would be appropriate, as that would give insufficient weight to the issues of general deterrence, specific deterrence and a just and appropriate sentence.

43 You have a number of factors that I take into account in your favour in mitigation of penalty when determining the appropriate sentence including -

• Your lack of any prior or subsequent criminal offending

• Your support in the community in terms of friends and family and relationships

• The circumstances in which your offending occurred.

44 Equally, I have to also consider other relevant matters which include general deterrence, which in cases of this nature is a significant matter, specific deterrence whilst not occupying such a dominant role as it may normally occupy considering the excellent progress that you have made in respect of rehabilitation, still has a relevance that must be noted.

45 The sentence of the Court is that in respect of the count on the presentment that of trafficking in a commercial quantity you are convicted and sentenced to be imprisoned for a period of 16 months, 8 months of such sentence to be suspended for a period of two years.

(2) 464 ZFB(1) retention of Forensic sample Granted.

(4) Declare that a period of one hundred and twenty five days has been served in pre-sentence detention in relation to this matter and such declaration is to be noted in the records of the Court.