R v Tricarico [2011] VSC 53

Supreme Court of Victoria|2011-03-01|Before: WHELAN J

CRIMINAL LAW - Sentence - Trafficking in a drug of dependence not less than a large commercial quantity - Guilty plea - Verdins principles - Bereavement Disorder - Adjustment disorder regarding potential re-incarceration - Parity - 5 years' imprisonment with non-parole period of 3 years.

1 David Tricarico, you have pleaded guilty to the offence of trafficking in a quantity of a drug of dependence not less than the large commercial quantity applicable to that drug. The drug of dependence is phenyl-2-propanone. The applicable quantity of that drug which is a large commercial quantity is 1 kilogram. The amount of the drug which you trafficked was approximately 5 kilograms. The period over which that trafficking occurred was 1 May 2007 to 5 June 2007. The maximum penalty for the offence is life imprisonment.

2 Phenyl-2-propanone, or P2P, is itself a drug of dependence, but it has value in the illegal drug trade because it can be converted into methylamphetamine. The offence you committed arose out of your involvement in the manufacture and supply of P2P to a methylamphetamine trafficking enterprise associated with Tony Mokbel, which was referred to by some of the participants as "the company". It is not alleged that you were yourself part of "the company", but rather that your activities concerned the supply to "the company" of a critical ingredient, namely P2P.

3 In order to understand your offending conduct it is necessary to address your personal background.

4 You were born on 14 October 1983, the son of Giuseppe Ferola, known as "Joe" or as "Max". Joe Ferola had married your mother in 1982. They had three children before they separated in 1989, and divorced in the following year. You are the oldest of those children. You have a younger brother and a sister. In evidence before me, your mother explained the breakdown of her marriage as being the result of your father's involvement in gambling and café culture which meant he was rarely at home. Joe Ferola was a close associate of a number of men involved in the illegal drug trade, including Tony Mokbel. One of Joe Ferola's activities in that regard was the production of P2P.

5 You were brought up by your mother and her parents, and by your mother's second husband. Your mother explained that her second husband was generous to you and to your siblings but that he never took on a true parental role. You were, and you remain, very close to your maternal grandparents. From time to time you have lived with them, and you were in fact living with them at the time of your arrest on 5 June 2007.

6 You received a good education and you did well at school. Letters from teachers, which were tendered on your plea, describe you in very positive terms. After leaving school you went to university and studied civil engineering.

7 In the latter years of your schooling you re-connected with your estranged father and were introduced to his world and to his associates. Your mother perceived this to be a positive development at the time. You and your younger brother became very close to your father. Your sister also eventually re-established a relationship with him.

8 In 2006 you commenced full time employment with a construction company named Concorp (Vic) Pty Ltd, while continuing your university studies part time. With the exception of a period of time in custody immediately after your arrest, you remained with that company until you moved to another construction company, Pearl Hill Pty Ltd, in 2010. Written testimonials from officers of both companies were tendered on your plea, and Aldo Timpanaro from Concorp and Mario De Iosa from Pearl Hill gave oral evidence. That material reveals you to be a person of ability who has undertaken tasks involving significant responsibility and who has demonstrated maturity beyond what would be expected of a person of your age.

9 On 19 February 2007 your father had a heart attack. On 22 February 2007 he died, after you had made the difficult decision to terminate life support. You were then 23 years of age. One aspect of your father's death which particularly upset you was that he had asked you to visit him on 19 February but you had been too busy.

10 The conduct which constitutes your offence occurred in May and June of 2007. On the plea the prosecution tendered an opening, and also tendered recordings and transcripts of conversations and intercepted phone calls between you and Tony Mokbel and others in May 2007. The prosecution opening covers events from late February 2007 on the basis that those earlier events put your conduct between 1 May 2007 and 5 June 2007 in proper context and explain how you came to be involved in the manufacture and supply of P2P.

11 On your plea, some matters in the prosecution opening were disputed.[1] I cannot make a finding against you on a disputed issue unless satisfied of that matter beyond reasonable doubt.

12 The enterprise to which the P2P you trafficked in was supplied operated on a large scale and involved a number of participants performing inter-dependent roles. The manufacture of methylamphetamine was divided into two stages. The first stage was the manufacture of P2P. This was the stage in which you were involved. The P2P was then subjected to a second process, in which you were not involved, so as to produce methylamphetamine. That methylamphetamine was then stored, prepared for sale, and sold at what might be described as a wholesale level. Again, you were not involved in those activities.

13 It is not disputed that after your father's death one of the senior participants in "the company", a person named Mansour, contacted you and put you into phone contact with Tony Mokbel, who was then overseas. The prosecution opening asserts that you were asked by Mokbel to take over your father's role as a P2P manufacturer and supplier, that you agreed to do so, and that you did then do so. On the plea your counsel disputed that, asserting that you were drawn into acting as what he described as a "go between"; passing information, materials and money between two groups of your father's former associates, being Mokbel and "the company" on the one hand and the P2P manufacturers, who he named as a person called "Umba" and others, on the other.

(1) On 23 May 2007 you delivered approximately 5 litres of P2P to a senior person in "the company" named Rizzo.

(3) You were a participant in a number of recorded conversations about the manufacture of, the delivery of, and the payment for P2P.

15 Given the dispute, the recorded conversations and intercepted phone calls which were tendered in evidence on the plea are important. They reveal the following:

(1) You discussed payment for the P2P produced with Mansour (Call 94) and with Mokbel (Calls 521 and 1360).

(2) You were given instructions about the delivery by Mokbel (Call 521).

(3) Others were involved in the manufacture apart from you, as is indicated by your use of "they" and "them" in your discussions about a manufacturing problem with Mokbel (Calls 367 and 521).

(4) You asserted knowledge of the "usual" course of the P2P manufacturing process (Call 367).

(5) You expressed concern about, and a desire to resolve, a manufacturing problem (foaming), and you first identified the possible cause of that problem (too much sodium), and then reported the eventual solution to Mokbel (Calls 521 and 1360).

(6) You refer to the manufacturing activities by reference to "they", but you also refer to those activities using both "we" and "I" (Calls 367 and 521).

(7) In the discussions, you address two P2P manufacturing problems which arose (the sodium problem and a broken vessel) in terms which reveal you to be a person who is involved in the P2P manufacture as an active participant and not as a mere "go between" (Calls 96, 367, 521 and 1360).

(8) In one conversation you go even further, expressing a personal desire to increase the production of P2P and encouraging Mokbel to take steps to enable you to do so (Call 1360).

16 I reject the submission put by your counsel that your role can properly be characterised as one of a "go between". You were an active participant in the P2P manufacture. You are also the person who delivered the P2P; and you are the person who received the $40,000. There is no evidence as to how you disbursed that money. You have consented to a pecuniary penalty order in the sum of $40,000.

17 You were arrested on 5 June 2007 and were in custody until bailed just before Christmas of that year. Upon being bailed, you returned to work with Pearl Hill and you completed your university degree. You then enrolled in a Masters program. You had one semester of that program to complete when I remanded you in custody upon the completion of your plea.

18 I have already referred to some of the documents tendered and the evidence given on your plea. Written testimonials from employers, teachers, family and family friends were tendered, all of which speak of you in the most positive terms. I heard oral evidence from your mother and from officers of your two employers. A report was tendered by a forensic psychologist, Dr Aaron Cunningham, and oral evidence was also given by him.

19 In his report Dr Cunningham says that he saw you on 28 October 2010. He had read the Crown opening and he also discussed relevant matters with your mother. He sets out your history and says that you reported no use of illicit substances. He reports that you do not have any personality disorder. He concludes that you have an adjustment disorder with anxiety in relation to re-incarceration, and that following the death of your father the symptoms which you reported to him were consistent with what he describes as a "DSM-IV diagnosis of Bereavement".[2] He expresses the opinion that you suffered a significant depression following the death of your father which resulted in a number of symptoms including "impaired thinking and reasoning skills". He expresses the opinion that this condition rendered you more susceptible and vulnerable to the influence of negative peers of your father "compared to an individual without Bereavement". He expresses the opinion that you have significant prospects for rehabilitation.

20 In his oral evidence Dr Cunningham described the bereavement condition as "Bereavement disorder", and said this was a "major depressive episode ... in response to the death of a loved one". He expressed the opinion that the reasoning impairment which such a disorder can produce is similar to that of a personality disorder although it is not of the same duration. He said that in his opinion this condition "had some play in that period of time", referring to the period of your offending. He said that you have expressed remorse. He agreed that a normal 23 year old would suffer the symptoms of bereavement upon the death of a father, and observed that bereavement may be seen as "a normal occurrence of an abnormal mental state". He expressed the opinion that "without the bereavement [you] may have been able to make a more rational decision".

21 At the time of your father's death you were working for Concorp. Mr Timpanaro in the course of his oral evidence was asked about that time. He said that, whilst it was possible to tell you were grieving, it did not affect your work and you continued to perform your duties normally. Your mother gave evidence that at the time she felt that there was something wrong and that your behaviour was distracted and anxious.

22 I accept Dr Cunningham's evidence, but I do so mindful of the following considerations:

(1) His conclusions are very substantially, if not entirely, based upon your own account and your mother's account of events. These accounts were given to him a long time after the relevant events and in a context where you were awaiting plea and sentence.

(2) The symptoms of the condition which Dr Cunningham describes as "Bereavement" are ones which almost every member of the community will suffer at some time to some extent.

(3) There is little evidence that you were suffering from obvious significant symptoms at the relevant time. You were able to work normally. Your mother says you were anxious and distracted.

(4) The nature of your activities in the course of your offending is significant, and was not a matter Dr Cunningham addressed with you. The relevant activities were not a single impetuous act, soon regretted; but were complex and were carried out over a period of time. They required both planning and nerve. They ceased only upon your arrest by police.

23 No previous case in which a mental condition described as "Bereavement" had been relied upon in mitigation was cited to me and I have not located any. Nevertheless, I accept that the condition, as described by Dr Cunningham, does fall within the principles relevantly laid down by the Court of Appeal[3] in that, whatever label one attaches to the condition, your mental functioning was impaired at the relevant time. As was submitted by your counsel, I accept that this does to some extent reduce your moral culpability and the extent to which your case is an appropriate vehicle for general deterrence. It does not eliminate either of those considerations, and, in my view, in this case general deterrence in particular is still a significant factor.

24 I also accept that you are very anxious about the prospect of receiving a custodial sentence. Whilst you are not a youthful offender in the sense in which that expression is used in the authorities, you are still young and you had never been to jail before.

25 Your counsel on your behalf put forward a number of other matters in mitigation.

26 He relied on the material as to your character, and the absence of any prior convictions. He submitted that the offending conduct is properly to be seen as an aberration related to the circumstances of your relationship with your father and your reaction to his death. He relied upon your good work and study record. I accept that those matters are to be taken into account in your favour.

27 He submitted that your role in the offending was essentially that of a "go between". For the reasons which I have given, I do not accept that. Your role was more than that. You were an active participant. This was a commercial endeavour. Specific deterrence remains a matter of relevance in my view, notwithstanding the remorse you have expressed to your family and to Dr Cunningham.

28 Your counsel relied upon your plea of guilty and submitted that your plea should not be seen as having been delayed, given that you were charged with offences in addition to the offence to which you have pleaded guilty, which have not been proceeded with. I accept that.

29 I also accept the submissions put on your behalf as to the effect of imprisonment on the completion of your Masters, on the delay which has occurred in the matter being resolved, on your good prospects of rehabilitation, and on your young age.

30 I have considered the sentences imposed on others who have pleaded guilty and were part of, or associated with, "the company" and I have considered the sentencing statistics and other sentences referred to by counsel.[4]

31 Your counsel submitted that in the circumstances a sentence of imprisonment which was suspended for such period as not to require you to serve further time in prison would be appropriate. Counsel for the prosecution submitted that the appropriate range was a head sentence between 4½ and 6 years with a non-parole period of between 2½ years and 4 years.

32 Parliament has determined that the offence to which you have pleaded guilty is one of the most serious crimes which can be committed. The maximum penalty is life imprisonment. You are not a person who has had a very unhappy upbringing and who has not been given opportunities in life. I say that notwithstanding the issues concerning your father which I have already addressed. You played a role in commercial drug trafficking and you played that role over a period of time, applying your considerable skills to that illegal endeavour. Notwithstanding everything which has been put on your behalf, your conduct was such that a significant term of imprisonment must be imposed.

33 For the offence of trafficking in a drug of dependence in a quantity not less than a large commercial quantity I sentence you to 5 years' imprisonment and I fix a non-parole period of 3 years. I declare that the pre-sentence detention is 276 days. But for your plea of guilty I would have sentenced you to a term of 7 years with a non-parole period of 5 years and 6 months.

[1] The particular paragraphs of the opening which were disputed, or which were sought to be interpreted in a manner different to that contended for by the prosecution, were paragraphs 19, 21, 23(d), 26, 27, 29, 61 and 62.

[2] "DSM-IV" is a reference to the fourth edition of the "Diagnostic and Statistical Manual of Mental Disorders."

[4] As to the sentences imposed upon others who were part of or associated with "the company" the position seems to me to be as follows.

I consider that Mansour (DPP v Mansour [2008] VSC 226), Rizzo (R v Rizzo [2009] VSC 17) and Issa (R v Issa [2009] VSC 633R) had a greater and more serious involvement in illegal activities than Tricarico. They were also involved in those illegal activities for a longer period than he was. The sentences handed to them reflect this. The undertaking to give evidence by Mansour was a very significant factor in his sentence.

I consider that Saro's (R v Saro [2009] VSC 569R) conduct was less serious than Tricarico's. Ryan's (DPP v Ryan [2009] VSC 631R) conduct was significantly different to Tricarico and to the others. He had a significant number of prior convictions, whereas Tricarico has none.

The offender of greatest potential similarity is Ferraro (R v Ferraro [2009] VSC 121). Tricarico's counsel sought to differentiate his situation from Ferraro's on a number of grounds.

I accept Tricarico's counsel's submissions that Ferraro was a part of "the company" and was involved in illegal activities for a longer period than Tricarico. In those respects his conduct was more serious than the Tricarico's. On the other hand, Ferraro's involvement was as a courier and a storeman whereas Tricarico acted as a producer and supplier. Further, Tricarico was in personal contact with Mokbel during the period of his offending, while Ferraro was not.

At the time of his offending, Ferraro was aged between 26-28 years. Tricarico was 23. The age difference cannot be ignored, but the difference is not great.

It was submitted that Ferraro's conduct was worse than Tricarico's as he was concerned with the trafficking of methylamphetamine, rather than phenyl-2-propanone, as Tricarico was. I do not accept that Ferraro's conduct was worse than Tricarico's simply because it involved methylamphetamine instead of phenyl-2-propanone (See R v Pidoto and O'Dea [2006] VSCA 185). I do however accept that Ferraro's conduct brought him closer to consumers, where the harm is done, than Tricarico's conduct. Further, Ferraro pleaded guilty to trafficking a greater quantity of a drug of dependence than Tricarico.

Finally, Tricarico's counsel sought to differentiate Tricarico from Ferraro on the basis that, at the time of his offending, Tricarico was suffering from a major depressive disorder and that the principles outlined in R v Verdins [2007] VSCA 120 apply to him. That is a point of distinction, but Ferraro's case also had mitigating features which Tricarico does not have and which relate to his physical disability and how that affected his relationship with Mansour and Rizzo.

Counsel for the prosecution submitted that, once all matters are taken into consideration, Tricarico's conduct was a little below that of Ferraro in terms of seriousness for the purposes of sentencing. I think that is an appropriate characterisation of the position.

The cases I was referred to by counsel were R v Rogers [2008] VSCA 114, Sumner v R [2010] VSCA 298 and R v Barbaro [2009] VSCA 89.

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