Regina v Giuseppe MAMMONE

Confiscation of Proceeds of Crime Act LEGISLATION CITED: Crimes (Sentencing Procedure) Act Criminal Appeal Act Drug Misuse and Trafficking Act

R v Simpson (2001) 53 NSWLR 704 CASES CITED: R v Skorin [2005] NSWCCA 276 R v Wall [2002] NSWCCA 42

COUNSEL: P Miller - Crown D Marr - Respondent

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) -

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2005/2550

McCLELLAN CJ at CL JAMES J HALL J

JUDGMENT 1 McCLELLAN CJ at CL: The Court is in a position to deliver judgment and I will ask Justice James to deliver the first judgment.

2 JAMES J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act against a sentence imposed on the respondent, Giuseppe Mammone, in the District Court on 3 November 2005 by his Honour Judge Puckeridge QC, for an offence to which the respondent had pleaded guilty of knowingly taking part, between 1 August 2002 and 15 March 2003, in the cultivation of not less than a large commercial quantity of cannabis plants.

3 Judge Puckeridge sentenced the respondent to a non-parole period of imprisonment of two and one half years, commencing on 17 December 2003, the date on which the respondent had been arrested and from which he had remained in custody, and a balance of the term of two years eight months and twelve days.

4 Knowingly taking part in the cultivation of not less than a large commercial quantity of cannabis plants is an offence under s 23(2)(a) of the Drug Misuse and Trafficking Act, for which the maximum penalty under s 33(3)(b) of the Act is imprisonment for a term of twenty years or a fine of five thousand penalty units, or both. Under the Act a large commercial quantity of cannabis plants is a thousand plants.

5 I have already noted that the respondent was arrested on 17 December 2003. He was then charged with the offence for which he was ultimately sentenced. On 27 April 2005 the respondent was committed for trial in the District Court. When he was arraigned in the District Court on 6 May 2005, he pleaded not guilty to the charge. His trial was fixed to commence on 22 August 2005. On 22 August 2005, the date fixed for the commencement of his trial, he pleaded guilty. As already noted, the respondent was sentenced by Judge Puckeridge on 3 November 2005. A notice of appeal by the Crown against the sentence passed by Judge Puckeridge was filed on 19 December 2005.

6 In the proceedings on sentence a statement of agreed facts became an exhibit and in his remarks on sentence his Honour stated the facts of the offence by reference to the statement of agreed facts. His Honour did make some further findings of fact, in addition to the facts set out in the statement of agreed facts. The following statement of the facts of the offence is based on his Honour's remarks and the statement of agreed facts.

7 On 15 March 2003 police executed search warrants on two adjoining properties near Fifield, which is about 90 kilometres from Parkes. One of the properties named "Emu Plains" was owned by the respondent. The other property named "Hippy Valley" was owned by a company with which Blaz (or Bill) Skorin was associated. Mr Skorin is a nephew of the respondent.

8 On the property "Hippy Valley" police found two separate plantations of mature cannabis plants. Each plantation was watered by an elaborate irrigation system with water coming from a dam on the property "Emu Plains". The total number of cannabis plants in the two plantations was 6,765.

9 The respondent was not arrested until 17 December 2003, when police executed a search warrant at his home in a Sydney suburb. After he had been arrested, the respondent declined to be interviewed.

10 In the proceedings on sentence evidence about the respondent's role in the cultivation of the plantations was contained in statements by witnesses named Mitchell and Ramsey and was incorporated in the statement of agreed facts.

11 In his statement Mitchell said that in early January 2003 the respondent had asked Mitchell whether he would work as a picker in the harvesting of the cannabis crop in the plantations. Mitchell declined but provided the respondent with the name of another person, who the respondent then contacted by telephone.

12 In his statement Ramsey, who lived at "Hippy Valley" for a number of months working in the cultivation of the cannabis plants, said that the respondent had visited "Hippy Valley" on a number of occasions and when he had visited, he had regularly inspected the cannabis plants. For a couple of days the respondent drove an excavator at "Hippy Valley", clearing areas for a drying tent for the cannabis and for toilet facilities for the workers on the site.

13 In his remarks on sentence Judge Puckeridge referred to some of the evidence given by the respondent in the proceedings on sentence. The respondent claimed in his evidence that he had visited "Hippy Valley" only three or four times. The respondent did admit that on such visits as he had made he had seen that cannabis plants were growing on "Hippy Valley" and had seen that water was being pumped from the property "Emu Plains" to "Hippy Valley". However, he denied that he had ever been told by Mr Skorin that water was being pumped from "Emu Plains" to "Hippy Valley".

14 It is unclear from his Honour's remarks on sentence how much of those parts of the respondent's evidence which were self-serving, was accepted by his Honour. His Honour's remarks on sentence suggest that his Honour had difficulty in accepting at least parts of the respondent's evidence.

15 In his remarks on sentence his Honour said that it was difficult to determine the role of the respondent in the cultivation of the plants or to describe his level or position in the criminal organisation as being high, middle, intermediate or low. His Honour found that the respondent knew that cannabis was being cultivated on "Hippy Valley" and that it was "not a small crop", even though the respondent may not have known the precise number of plants. The respondent knew that water was being pumped from the dam on his property to irrigate the plants on "Hippy Valley".

16 His Honour said that if, allowing the water to be pumped was to be classified as "passive" conduct, it was nevertheless extremely important passive conduct. His Honour refrained from making a finding that at the time the dam was constructed on "Emu Plains" the respondent knew that water from the dam would be used to irrigate cannabis plants on "Hippy Valley".

17 His Honour found that specific activities the respondent had engaged in for the purposes of the cultivation included clearing the land for the drying tent and for the toilet facilities, visiting "Hippy Valley" and inspecting the plantations, attempting to recruit workers to pick the crop, buying a marquee to be used as a drying tent for the cannabis and allowing a generator he owned to be used in cultivating the plants.

18 In his remarks on sentence his Honour said that it was an aggravating factor that, at the time of committing the offence, the respondent had been on a bond, that is on conditional liberty. In fact, on 10 August 2001, the respondent had been sentenced to imprisonment for three years to date from 24 August 2001, with a non-parole period of one year and a parole period of two years, to be served by way of periodic detention for an offence of shooting with intent to cause grievous bodily harm.

19 The respondent was, accordingly, subject to this sentence throughout the whole of the period during which he committed the present offence. The non-parole period of the sentence expired shortly after the commencement of that period. That the respondent was subject to this sentence and on some form of conditional liberty during the whole of the period within which he committed the present offence was an important aggravating factor.

20 In his remarks on sentence his Honour referred to some factors which he regarded as mitigating factors. One such factor was the respondent's age. The respondent was born on 7 November 1931 and, accordingly, at the time of being sentenced, he was 73 years old, almost 74. Other factors were that the respondent had been a hard worker throughout his life and that he had shown concern for the members of his family.

21 A pre-sentence report for the respondent disclosed that he had been born in Italy, that he had migrated to Australia with four of his brothers and sisters in 1955, that he himself had never married and had never had children but that he had maintained contact with his brothers and sisters and their children.

22 Another factor was the respondent's health. His Honour said in his remarks on sentence: "The prisoner, on the evidence before me, is not enjoying the best of physical health. He has stated that he believes that he has prostate cancer. Although he has been advised by doctors within the Justice Health System that an operation could be carried out whilst he was in custody, he has stated that he wishes to wait until he is released before any operation is carried out. The evidence before me certainly does not show that there is an immediate need for such operation or the nature of any such operation. The evidence before me does show that he is also suffering from Paget's disease, which is a bone disorder ". 23 In his remarks on sentence his Honour then turned to the respondent's plea of guilty. His Honour put to the Crown's representative in the proceedings on sentence: "You have nothing to submit against the submission that the prisoner is entitled to the maximum discount for the plea of guilty?"

24 The Crown's representative replied that the plea of guilty had been made at a very late stage, on the morning of the day fixed for the commencement of the respondent's trial, that the Crown had already arranged for all of its witnesses to be on stand-by, including three witnesses who had been brought by the Crown from overseas.

25 The Crown's representative did accept that the respondent's plea of guilty had avoided a trial which would have lasted a fortnight.

26 Counsel for the respondent in the proceedings on sentence suggested a discount of 20% for the respondent's plea of guilty and his Honour, against the opposition of the Crown, said that a discount of 20% would be appropriate.

27 His Honour found that there were special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act in the respondent's advanced age, his state of ill health, that he was in custody on protection although only on a form of limited association protection, and that he could be "of little assistance to his family and to his wife". As I have already noted, the respondent was not, in fact, married.

28 The steps by which his Honour arrived at the sentence which he ultimately passed were as follows:

29 His Honour considered that an appropriate term of imprisonment before allowing for the plea of guilty would have been six and one half years. His Honour allowed a discount of 20% for the plea of guilty. Implementing this finding with great and, I would suggest, unnecessary exactitude, his Honour arrived at a figure of five years two months and twelve days. Having found special circumstances his Honour found that a non-parole period of two and one half years would be appropriate, so that the balance of the term would be two years eight months and twelve days.

30 In the proceedings on sentence the judgment of this Court in Regina v Skorin [2005] NSWCCA 276 delivered on 11 August 2005 was handed up. The principal judgment in Skorin was delivered by myself. The other members of the Court agreed with my judgment.

31 As I have already noted, Skorin is a nephew of the present respondent and a company with which Skorin was associated was the owner of "Hippy Valley". Skorin was sentenced for the same offence as the present respondent, that is of knowingly taking part in the cultivation of not less than a large commercial quantity of cannabis plants, and he had committed that offence with respect to the same two plantations of cannabis plants on "Hippy Valley".

32 Skorin had also been sentenced by Judge Puckeridge. His Honour imposed a sentence consisting of a non-parole period of just on three days less than one year (the deduction of three days was to allow for three days of pre-sentence custody) and a parole period of one year two months.

33 The Court of Criminal Appeal allowed a Crown appeal against the sentence imposed by Judge Puckeridge on Skorin and, in lieu of the sentence imposed by his Honour, imposed a sentence of a term of imprisonment of four and one half years with a non-parole period of two years nine months. The Court of Criminal Appeal arrived at the sentence it pronounced in the following way.

34 The Court found that a starting point of eight years before allowing for any quantified discount was at the bottom end of the range of starting points available for an offence such as that committed by Skorin, who, the Court found, had occupied an intermediate position in the organisation carrying out the enterprise of cultivating the plants.

35 The Court then allowed a combined discount of 40% - in fact, a little more than 40% - for Skorin's plea of guilty, which was an earlier plea of guilty than the respondent's, and for assistance, which Skorin, unlike the present respondent, had provided, thus producing a total sentence of four and one half years.

36 The Court of Criminal Appeal adopted Judge Puckeridge's finding that there were special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act and divided the total term of the sentence of four and one half years into a non parole period of two years nine months - that is, approximately 60% of the total sentence - and a parole period of one year nine months.

37 The principal submissions made by the Crown on this appeal were that the sentencing Judge had failed to impose a sentence which reflected the objective seriousness of the offence and which fulfilled the sentencing purpose of general deterrence; that the sentencing Judge had adopted a starting point before allowing a discount for the plea of guilty which was too low; that the sentencing Judge had given too large a discount for the plea of guilty; and that the sentencing Judge had erred in how he dealt with special circumstances.

38 The principal submissions made on behalf of the respondent were that the starting point of six and one half years had been within range, that the discount of 20% for the plea of guilty had also been within the range available to his Honour, and that his Honour had not made any appellable error in how he had dealt with special circumstances.

39 A further submission was made that in the sentencing of the respondent the sentencing Judge should have taken into account evidence given by the respondent in the proceedings on sentence that proceedings under the Confiscation of Proceeds of Crime Act had been brought against him and that he had consented to an order requiring the payment of a large amount of money. It was conceded that the general rule is that a sentencing court does not take into account any order made against an offender under proceeds of crime legislation.

40 The principles to be applied by this Court in determining Crown appeals against sentence were stated by Wood CJ at CL in his Honour's judgment in Regina v Wall [2002] NSWCCA 42 at par 70, in a passage which has frequently been quoted or referred to in subsequent cases.

41 The criminal enterprise in which the respondent participated was the same criminal enterprise as that in which Skorin participated and the statement of agreed facts in the present case, insofar as it related to the criminal enterprise, was in similar terms to the corresponding parts of the statement of agreed facts in Skorin's case. What I said in par 38 of my Judgment in Skorin is equally applicable in the sentencing of the present respondent:- "The criminal enterprise in which the respondent participated was objectively very serious. Six thousand seven hundred and sixty-five cannabis plants were being cultivated, that is nearly seven times the number of plants which under the Drug Misuse and Trafficking Act amount to a large commercial quantity of cannabis plants. The plants were being cultivated with a high degree of planning and organisation. The plants were cultivated over a period of several months between August 2002 and March 2003 and by March 2003 were mature and ready for harvesting. The value of the crop from the plants would have been millions of dollars."

42 As regards the objective criminality of the respondent I have already referred to the statement of agreed facts and to his Honour's findings about what the respondent had done and had permitted in the cultivation of the plants. What Skorin had done in the cultivation of the plants was different from what the respondent had done and permitted. In my Judgment in Skorin I said in par 39 with regard to Skorin: "The sentencing judge did not make any express finding about the position of the respondent in the criminal organisation. However, it is clear from the undisputed facts and from the findings actually made by his Honour on the basis of Ramsey's evidence that the respondent was not at the lowest level of the organisation but was, at least, at some intermediate level. The respondent recruited Ramsay as a worker. The respondent supplied food and equipment to the workers at the site of the plantations and the respondent visited the site on a number of occasions to check on the progress of the cultivation. The sentencing judge clearly found that the respondent was already a participant in the venture, when he recruited Ramsey in August 2002."

43 Both Skorin and the respondent were not users of drugs and were participating in the criminal enterprise purely for commercial gain.

44 The sentencing Judge did find that the respondent had some favourable subjective circumstances, in his advanced age and in his state of health, that he had been a hard worker and that he had shown concern for members of his family. The last two circumstances would not have distinguished the respondent's case from Skorin's case so as to advantage the respondent. Skorin had conducted a legitimate business and, unlike the respondent, had a wife and children.

45 I would be prepared to accept that the advanced age of the respondent entitled him to some discount in sentencing, on the basis that serving a term of imprisonment will be more than usually onerous for him, although I note that the Department of Corrective Services documents about the respondent which were admitted into evidence in the proceedings on sentence appear to show that the respondent had coped quite well during the almost two years of imprisonment he had already served.

46 In evidence he gave in the proceedings on sentence the respondent claimed that he was suffering from cancer of the prostate. The documents which had been admitted into evidence appear to me to show that the respondent had had, for a number of years, an enlarged prostate, though in 1997 the enlargement had been found to be benign, that more recently a doctor within the Correctional Health System had expressed a fear that the enlargement may have become malignant, but that the respondent had refused to allow investigations to be carried out which would establish whether or not he had cancer. In any event, it was not shown in the proceedings on sentence that the respondent's condition could not be adequately investigated and treated within the Correctional System.

47 I have concluded, when allowance is made for the differences between the conduct of the present respondent and the conduct of Skorin and even after allowing for the important aggravating factor in the respondent's case of the offence having been committed while he was on parole and when allowance is made for the respondent's age and health, that this Court, having regard to the principles governing Crown appeals against sentence, should accept that the starting point of six and one half years adopted by his Honour was within, although only barely within, the range of starting points available to his Honour.

48 As already noted, the respondent pleaded guilty and he was entitled to some discount for the utilitarian value of the plea of guilty. However, the discount of 20% allowed by the sentencing Judge was, in my opinion, manifestly excessive. The respondent pleaded guilty for the first time almost two years after he had been arrested, on the day which had been fixed for the commencement of his trial. He pleaded guilty after the Crown had already placed all of its witnesses on stand-by and had brought three witnesses from overseas.

49 His Honour found that there were special circumstances, and on this appeal the Crown was prepared to accept that such a finding had been open to his Honour. However, his Honour's decision to divide up the sentence so that the non-parole period was actually less than the parole period resulted in the imposition of a non-parole period which did not appropriately reflect the criminality involved in the offence. (See Regina v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at 718, pars. 63-65)

50 It is also necessary to bear in mind what the Chief Justice said at par 67 of his Honour's judgment in Simpson, that care must be taken in treating as special circumstances matters which have already been taken into account in determining the length of the head sentence.

51 I have decided that the sentence imposed on the respondent was manifestly inadequate and that his Honour's reasoning contained some specific errors. There is no discretionary reason why this Court should decline to allow the Crown appeal. In my opinion, the Crown appeal should be allowed and this Court should re-sentence.

52 I have already set out the objective facts of the offence and the subjective circumstances of the respondent. There is further evidence before this Court that the respondent was placed on protective custody only at his own request, that it was only a form of limited association protection and that he has now returned to the general prison population. I take into account the Crimes (Sentencing Procedure) Act, ss 3A and 21A. Because the period within which the offence was committed commenced before 1 February 2003, the sentence should comply with the previous, and not the current, s 44 of the Crimes (Sentencing Procedure) Act.

53 I would adopt a starting point of six and one half years before allowing a discount for the plea of guilty. I would allow a discount of approximately twelve and one half percent for the plea of guilty, producing a head sentence of five years and eight months.

54 I would find special circumstances in the respondent's advanced age and the respondent's health and I would divide the head sentence into a non- parole period and a parole period such that the non-parole period is approximately 60% of the head sentence.

55 The orders I would propose are as follows: Appeal allowed. Quash the sentence imposed in the District Court on 3 November 2005. In lieu thereof, the respondent should be sentenced to a term of imprisonment of five years eight months, commencing on 17 December 2003 with a non-parole period of three and one half years commencing on 17 December 2003 and expiring on 16 June 2007, and an additional term of two years two months. The earliest date on which the respondent would be eligible for release on parole would be 16 June 2007.

56 McCLELLAN CJ at CL: I agree with Justice James This was a major commercial criminal enterprise. The sentence proposed by his Honour is, in my opinion, the minimum which could be imposed having regard to the factual findings with respect to the respondent's involvement in the enterprise made by Judge Puckeridge, and also having regard to the circumstances of the respondent's plea and the relevant subjective matters.

57 HALL J: I also agree with the orders proposed by Justice James and for the reasons stated by him.

58 McCLELLAN CJ at CL: Accordingly, the orders of the Court are as proposed by Justice James.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.