R v Spizzeri [2001] VSCA 49

5. The applicant was one of a large number of co-conspirators who were arrested following a successful coup by the Victoria Police on 18 August 1998 which "nipped in the bud" a series of transactions pursuant to which orders for large quantities of chemicals commonly used in the manufacture of methyl-amphetamine were transacted by and on behalf of persons known and unknown. Specifically, the police coup on 18 August 1998 interrupted a transaction pursuant to which an order for 25 kilograms of pseudoephedrine at a cost of more than $200,000 was in the course of being fulfilled. The order had been placed by the accused man Young, with the aid of a co-accused called Cartledge, through an undercover police operative who went by the name of "Carlino". The transaction was being fulfilled at premises in Reservoir known as "Panther Technologies" at which Young's nephew, a man called Kristian Spiers, conducted some form of business activity. Present, or in the vicinity, at the time of the raid were Young, Cartledge, one Terrence Middlebrook, two men from New South Wales named Michael Brown and Benjamin Wuyts, the applicant Frank Spizzerri and his brother Dean. Following the successful closure of the police operation two other men named Farrell and Panagiotopoulos were also arrested and charged.

8. Pivotal to the course of criminal conduct which had ensued for a period of some four months were the accused Young and Cartledge, the latter, as the sentencing judge found, assisting the former. They were the brokers who placed the orders for the illicit substances on behalf of others who, presumably, were using or contemplating the use of those substances in manufacturing operations. The enormity of the scale of the operation can be gauged from the scale of the orders placed for substances such as pseudoephedrine, iodine, hypophosphorus acid, phenylacetic acid, acetol anhydride, red phosphorus, lithium and formamide. The scale can also be gauged from the huge amounts of money which were being offered for the purchase of the substances - amounts running into many hundreds of thousands of dollars. The police became aware of the activities when Young was introduced to the police undercover operative through a registered informer. The operation, consistent with many other operations with which this Court has become familiar in drug related enterprises, was skilfully managed. The skill with which it was managed should not, however, be permitted to conceal the risks to which police officers such as Carlino subject themselves in seeking to curb the activities of those who would enrich themselves by peddling drugs to less fortunate members of our community.

11. Each of the accused to whom I have referred - save Farrell, Panagiotopoulos and the applicant's brother Dean (who absconded) - stood for sentence before the same judge of the County Court over a period spanning some six months in the year 2000. The care, attention and compassion which his Honour brought to his sentencing task can be gleaned from the series of sentencing remarks which his Honour has recorded, and which I have had the considerable benefit of reading. His task was a difficult one because of the differing roles and personal circumstances of the accused - each of whom pleaded guilty - and the charges preferred against them. Young, Cartledge, Wuyts, Brown, Middlebrook and the applicant were each charged with conspiring to traffick in the commercial quantity of pseudoephedrine which was the subject of the transaction of 18 August 1998. The quantity of substance to which the charge related was expressed to be not less than a commercial quantity - in fact it was ten times the commercial quantity prescribed by the Drugs, Poisons and Controlled Substances Act 1981. It is an offence for which Parliament has prescribed a maximum penalty of 25 years. Each of Young and Cartledge pleaded guilty to an additional charge of possessing illicit substances for trafficking between April and July 1998, an offence which carries a maximum penalty of 10 years. It is tolerably clear from his Honour's remarks that he regarded Young and Cartledge as the persons who played the principal roles in the range of criminal activities disclosed by the material before him, describing them respectively as "the broker" and "the assistant broker" for the transactions which culminated in the arrests on 18 August. Each of them had participated in the criminal activities for which they fell to be sentenced for a period of some months before the events of that day. Each had a significant criminal history. The remaining accused, who stood for sentence on the charge of conspiring to traffic in the pseudoephedrine which was the subject of the transaction on 18 August 1998, was regarded by his Honour as having a role of "shorter duration" than that of Young and Cartledge, although there were factors about each - apart from Middlebrook - which suggested a greater knowledge about the transaction than that to which each had professed. Brown, who had driven Wuyts to the premises of Panther Technologies on 18 August, had driven from a farm property in New South Wales, upon which a later search had found paraphernalia and substances commonly used in the manufacture of amphetamines. Wuyts, who had also come from New South Wales, was in possession of a bag containing $75,000. The applicant, who was described by his Honour as "a courier and tester", had come to the premises with his brother Dean, who carried with him also a bag containing a substantial quantity of money. In respect of the applicant, his Honour found that there "was no suggestion that he was to be the ultimate user of the pseudoephedrine or in any way to be involved in the manufacture". In that regard his Honour said his role was that of a "tester" and that that role was "limited but none the less an important one".

14. At the end of the day, his Honour imposed sentences relevantly as follows:

In respect of Young - on count 1 (possessing substances for trafficking between April 1998 and July 1998) - 3 years; count 2 (conspiring to traffick in not less than a commercial quantity of the substance pseudoephedrine) - 7 years. The total effective sentence was 7 years and his Honour imposed a non-parole period of 5 years.

In respect of Cartledge, his Honour sentenced him on count 1 (possessing substances for trafficking between April and July 1998) - 2 years and 6 months; on count 2 (conspiring to traffick in a commercial quantity of pseudoephedrine) - 5 years; making a total effective sentence of 5 years. His Honour fixed a non-parole period of 2 years and 8 months.

Upon Wuyts, who was charged with the same conspiracy to traffick in pseudoephedrine, his Honour imposed a sentence of 3 years and 6 months and fixed a period of 2 years and 3 months before he became eligible for parole.

In respect of Brown, who was charged with the same offence as Wuyts, his Honour sentenced him to the same period of 3 years and 6 months and fixed a non-parole period of 2 years and 3 months.

In respect of the applicant, who was charged with the same offences of conspiring to traffick in a commercial quantity of pseudoephedrine, his Honour imposed a sentence of 5 years and fixed a non-parole period of 3 years.

It is not necessary or relevant to set out the sentence imposed on Middlebrook because he was clearly a young man whose only role was to be a driver for Young. He was charged as an aider and abettor of the transaction of 18 August.

24. When the application for leave to appeal before this Court was called on yesterday, the applicant Spizzerri was one of four applicants - the other three being Cartledge, Brown and Wuyts. At the outset of the hearing the Court intimated to the applicants Cartledge, Brown and Wuyts that, on the materials which we had read, there was nothing to suggest that the sentences imposed upon them were other than modest having regard to their respective culpabilities, and that they might like to consider their positions in the light of what the Court had said. This, of course, was nothing more than the profession of a provisional view. Subsequently, counsel for each of those applicants, I think quite appropriately, indicated that their respective clients wished to seek the Court's leave to abandon their applications. In each case that leave was given.

27. On behalf of the applicant Spizzerri, Mr Croucher advanced only one ground, that of the disparity between the sentence imposed upon his client and that imposed upon Cartledge. It will be recalled that Cartledge received a total effective sentence of 5 years with a non-parole period of 2 years and 8 months, and the applicant received a sentence of 5 years with a non-parole period of 3 years. It was submitted by Mr Croucher that, having regard to the respective roles found by his Honour to have been played by Cartledge and the applicant, and also having regard to their comparative personal circumstances, this Court should be prepared to conclude that the applicant was entitled to entertain a legitimate sense of grievance stemming from the lack of parity between the sentences - a sense of grievance which would, so Mr Croucher submitted, be shared by an objective and informed bystander. Mr Croucher not only emphasised the respective roles but also the nature and type of criminal history possessed by Cartledge on the one hand with the moderate and rather old criminal history admitted by his client, which was almost entirely of a "street offence" character punished in the Magistrates' Courts and not involving drugs. Furthermore, he pointed out, as had been pointed out to the learned trial judge, that the applicant was, at the age of 53, anything but a well man, suffering from progressive heart disease and associated disorders which place him at increased risk of further infarction if subjected to stress. He has been placed on the waiting list at the Monash Medical Centre for a bypass operation.

30. Mr Ryan, who appeared for the respondent, was prepared to acknowledge, I think, that at first blush the sentence imposed upon the applicant appears to be adversely disparate to that imposed upon Cartledge. However, he submitted, in a rather ingenious argument, that when one explores the comparative situations leading to the sentences imposed and the persons upon whom they were imposed, any suggestion of disparity can be readily explained. His Honour, as it was submitted, was bound to take into account principles of totality as a consequence of a sentence imposed upon Cartledge for the offence of trafficking subsequent to the commission of the offence for which he fell to be sentenced by his Honour. For that offence Cartledge had received a sentence of 3 years with a minimum of 18 months, a sentence in respect of which he had served the whole of the non-parole period before he was sentenced by his Honour. In those circumstances, so it was said, the sentence of 5 years imposed by his Honour was the equivalent of something like 6½ years. Furthermore, Mr Ryan submitted, his Honour was entitled to regard the applicant's role in this offence as a significant one because he was the expert employed by Young and Cartledge to test the quality of the pseudoephedrine.

33. I have some difficulty in accepting that the sentences imposed by his Honour upon the applicant and Cartledge respectively can be explained adequately by the factors to which Mr Ryan has referred. In the first place, no such reasons were given by his Honour for setting the sentences which he did in respect of Cartledge. Indeed his Honour clearly reduced the non-parole period for Cartledge by reference to the fact that his parole for the offence committed in October 1998 had been cut short by his arrest for the instant offences - a benefit which, as it seems to me, was unduly favourable to Cartledge[1]. His Honour did not suggest that the head sentence imposed upon Cartledge was grounded in principles of totality; indeed it seems to me that it was far more likely that the sentence imposed was to differentiate Cartledge's sentence from that imposed upon Young. So far as the roles of the various accused were concerned, it seems to me that the entire sentencing process proceeded on the basis that the gravity of Cartledge's role was superior to that of the applicant, Wuyts and Brown. In the long run it would appear to me to be likely that the evident disparity between the sentences imposed upon Cartledge and the applicant was the product of the fact that, because of his ill health, the applicant was not sentenced for some time after the sentences had been imposed on all other accused.

36. I am, somewhat reluctantly, compelled to the conclusion that the ground raised by Mr Croucher on behalf of his client has been made out and that the application should be allowed. My reluctance stems from two matters. First, it is clear to me that the sentencing judge, in the face of a complex sentencing task, has, as I have previously said, performed that task in what appears to have been a careful fashion. Nevertheless, the disparity between the sentences imposed upon Cartledge and the applicant continues to strike me as an unjustified one. Secondly, an appellate court should be careful in concluding manifest disparity, particularly where the offenders have been sentenced by an experienced judge who has sentenced a large number of offenders engaged in the same criminal enterprise. In those circumstances the appellate court is at risk of upsetting the symmetry of the sentencing process employed by the judge and introducing its own disparity into that process. To that extent the Court is constrained in rectifying a disparity which it perceives. Because of those constraints, it runs the risk of "tinkering".

39. Nevertheless, for the reasons given, I think that in the special circumstances of this case I would be prepared to rectify a disparity which I am satisfied does exist between the sentences imposed respectively on Cartledge and Spizzerri. In doing so, I indicate that I am not prepared to go further than to rectify the disparity which seems to me to be there, but without distorting the overall symmetry of his

Honour's sentencing process. To achieve that result I would propose that the applicant be sentenced to a period of 4 years and 3 months, and I would fix a non-parole period of 2 years and 8 months before he becomes eligible for parole.

45. I agree entirely. I would like to emphasise that in my opinion the sentence imposed is a modest one, and it is only to be imposed because of the rules relating to disparity which this Court is obliged to apply.

49. I agree with the learned President and concur in Ormiston, J.A.'s observations.

53. The formal order of the Court will be that the application for leave to appeal is allowed, the appeal is treated as having been instituted and heard instanter; it too is allowed.

56. The sentences imposed on the applicant below are quashed and in lieu thereof this Court imposes a sentence of 4 years and 3 months' imprisonment and directs that a period of 2 years and 8 months be served before the applicant becomes eligible for parole.

59. 16 Pursuant to s.18 of the Sentencing Act 1991, we declare that the applicant has already served 353 days of the sentence which we have imposed and we direct that that declaration and its details be entered in the records of the Court.

[1] cf. R. v. Loguancio [2000] VSCA 33; [2000] 1 V.R. 235 at 244.