Court of Appeal (Vic)|2011-05-17|Before: Neave JA, Warren CJ

Rizzo v The Queen [2011] VSCA 146 (17 May 2011)

R v Rizzo [2009] VSC 17 (King J)

1 I have had the advantage of reading in draft the reasons for judgment of Neave JA. I agree that, for the reasons which her Honour gives, the appeal should be allowed and the appellant re-sentenced as her Honour proposes.

2 The appellant, Bartholemew Rizzo, pleaded guilty to two counts of trafficking in a commercial quantity of a drug of dependence (counts 2 and 4) and counts of trafficking in a large commercial quantity of a drug of dependence (count 1) and dealing with the proceeds of crime knowing it was the proceeds of crime (count 3). After hearing a plea in mitigation of sentence, the learned sentencing judge sentenced the appellant as follows:

Trafficking in a large commercial quantity of a drug of dependence[1]

Trafficking in a commercial quantity of a drug of dependence[2]

Dealing with the proceeds of crime knowing it was the proceeds of crime[3]

Trafficking in a commercial quantity of a drug of dependence

This amounted to a total effective sentence of 16 years' imprisonment and the judge directed that the appellant serve a non-parole period of 13 years. Her Honour declared that, if the appellant had not pleaded guilty, she would have sentenced him to a total effective sentence of 16 and a half years' imprisonment.[4]

3 On 13 August 2010, the appellant was granted leave to appeal by a single judge of this Court. The full statement of grounds filed subsequently set out the following grounds of appeal:

Ground 1: The learned judge erred in sentencing on Count 1 on the basis that a large commercial quantity of methylamphetamine was one kilogram when, at the time of the appellant's offence, the applicable threshold was two-and-a-half kilograms.

Ground 2: The sentence on Count 1, the directions for cumulation and the resulting total effective sentence are manifestly excessive and in breach of totality, particularly in view of the following matters:

(a) the appellant's extremely early indication and entry of a plea of guilty;

(b) his limited prior convictions;

(c) his poor physical health and depression;

(d) the fact that he has served and will continue to serve his sentence in onerous protection-like conditions;

(e) his prospects of rehabilitation;

(f) the additional punishment resulting from forfeiture of his interest in property given to him by his grandmother.

Ground 3: The learned judge erred:

(a) in imposing a manifestly excessive non-parole period: and

(b) in failing to impose a far greater disparity between the non-parole period and the total effective sentence.

Ground 4: The learned judge erred:

(a) in failing to give sufficient weight to the pleas of guilty indicated and made at the earliest stage; and

(b) in reducing the weight to be accorded to the pleas of guilty on account of the strength of the prosecution case.

4 Together with his co-offender, Joseph Mansour, the appellant was a principal organiser of a large and well-organised drug dealing operation known as the 'Company', which manufactured and distributed large amounts of methylamphetamine, trafficked in cocaine and MDMA, and was involved in money laundering activities. Ten people were identified as either being members or having an involvement with the Company.

5 The Crown described Mr Mansour as being the 'right-hand man' of the major beneficiary of the operation, Antonios Mokbel, and the appellant as the 'left-hand man' who was mainly involved with the financial side of the operation. It was undisputed that Mr Mansour had more contact with Mr Mokbel than the appellant, but the judge found that he and the appellant were equal principals in the company.

6 When the appellant and Mr Mansour first met Mr Mokbel, they knew of his reputation as a drug trafficker. Soon afterwards, they distributed two pounds of methylamphetamine purchased from him. Later on, in Mr Mokbel's absence and without any direction from him, they continued purchasing drugs from a source known through Mr Mokbel. Their activities helped them provide funds to Mr Mokbel to assist him in fleeing the jurisdiction to avoid trial.

7 The Company's operations were described by the judge as follows:

'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 to account for the money that had been made. The profits made from the on selling of the drug were to be divided between yourself and [Mansour] alone. There is no doubt that the idea was to make as much profit on each sale of methylamphetamine that was possible.

You and other company members ran 'the company' as if it were a legitimate business, in that, you either assisted with the manufacture of the methylamphetamine by giving directions, or paying out money on behalf of 'A' to others to whom he had given orders and then when the manufacturing process was complete you bought 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 the moneys 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.[5]

8 She later described the various practices adopted by the Company for the purposes of avoiding police detection. These included:

(a) the use of code terms for people, places, drugs, weights and other items;

(b) regularly changing their mobile phones and SIM cards;

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

(d) the hire and use of hotel/motel premises to cut and repackage drugs;

(e) the performance of anti-surveillance techniques particularly when driving around with drugs and drug paraphernalia;

(f) the use of various places and storage facilities to store drugs, drug money and drug paraphernalia;

(g) choosing meeting places for drug negotiations and transactions where there was no known surveillance or video devices in the area.[6]

9 Count 1 concerns the distribution of at least 42 kilograms of methylamphetamine, with a wholesale value of approximately $4.2 million, between 1 January 2006 and 5 June 2007.

10 Count 2 concerns the trafficking in a commercial quantity of cocaine. The trafficking of cocaine was conducted almost exclusively by the appellant and involved the purchase of cocaine from a supplier for about between $7,000 and $8,000 per ounce. Between December 2005 and May 2007,[7] the appellant was supplied with over 40 ounces of cocaine.

11 Count 3 relates to the $4.2 million used to purchase raw materials as part of the Company's drug operations. The Crown described the Company's actual gross turnover as incalculable and the $4.2 million figure as a conservative estimate. The judge found that a figure of $4.5 million may have been more accurate, based on her analysis of the 'Raymond Weil' spreadsheet, which was a record of the financial transactions entered into by the Company.

12 Count 4 relates to the appellant's trafficking of MDMA between 3 May and 5 June 2007. MDMA was purchased after it became difficult to obtain cocaine from the previous supplier. Searches resulted in the seizure of one kilogram of MDMA contained in four separate packages, with a purity ranging from 20 to 90 per cent and worth in excess of $200,000.

13 Between the period 1 May 2007 and 5 June 2007, various conversations involving the appellant were captured on recording devices. Together with the evidence of an informer, the recorded conversations formed a strong case against the appellant and his co-accused. Co-ordinated arrests and searches were made and conducted on 5 June 2007 and resulted in the seizure of over 1.1 kilograms of methylamphetamine, three ounces of cocaine, precursor chemicals, glassware and cash in excess of $790,000.[8] Over $180,000 in cash was found at the appellant's premises, as well as equipment associated with the manufacture of drugs, such as a vacuum sealer, cutting agents and scales, and multiple mobile phones, notes concerning bank accounts, the 'Raymond Weil' account, hire car agreements and drugs. The appellant indicated that he would plead guilty to an appropriately framed presentment, very soon after his arrest.[9]

14 The judge sentenced the appellant on the basis that he made an unknown amount of money from the on-selling of the drugs. As it was not clear whether he received any of the profits generated from the manufacture of methylamphetamine, she did not sentence him on that basis.[10]

15 The appellant was aged between 27 and 28 years during the period of offending and aged 30 years at the date of sentence. He admitted four prior convictions arising from a single court appearance. These were for 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. The appellant was stopped by police for a minor traffic infringement and displayed the driver's licence of another. Police searched the car and discovered a small semi-automatic pistol, loaded with copper hollow point bullets, and two foils of methylamphetamine. He pleaded guilty to these offences, was sentenced to 12 months' imprisonment, suspended for two years, and had his driver's licence suspended for a month.

16 The appellant is the oldest of three children. His parents ran a retail store in Templestowe, at which the appellant worked for a short time. He has been overweight from a very young age and was bullied at school. However, he performed well enough to gain entry into a business management course at Swinburne University.

17 In his final year of secondary school, the appellant was diagnosed with attention deficit hyperactivity disorder and prescribed dexamphetamine, which was said to assist him with his studies. He left university after about two and a half years, before obtaining his degree.

18 From about 1999, after he had left university, to 2004, the appellant worked for his parents. In evidence given at the plea hearing, his mother described him as being brilliant with customers. After the appellant was injured in a car accident on 18 June 2004, he stopped working for a time.

19 In May 2003, he was convicted of the offences described in [15] above. About six months later in September, he sought medical treatment for his obesity. Over the next seven months, during which time the appellant followed a strict diet and exercise regime prescribed by Dr Peter King, the appellant lost a significant amount of weight. Dr King prescribed the appellant anti-inflammatory medication and a course of physiotherapy after his car accident, and he later returned to work.

20 On 6 September 2005, the appellant was involved in another car accident, which left him with ongoing shoulder pain. He was ultimately diagnosed with severe articular wear with loss of articular cartilage. To treat his continuing pain, the appellant was prescribed oxycontin, a morphine based painkiller. Shortly before his arrest, the appellant was taking 5 milligrams of endone and 40 milligrams of oxycontin (the dosage of which had been doubled). After he came into custody, the oxycontin was replaced with 175 milligrams of methadone, which is considered a higher than average dosage. The judge recognised that the appellant had health problems relating to either his obesity or his car accident, which would add to the burden of his imprisonment.[11] These included sleep apnoea, anxiety and sleep disturbance, constipation from the pain-killing medication he was taking, shoulder pain and a degree of depression.

21 The judge rejected the claim that the appellant's major motivation in offending was his cocaine dependence. She said:

I do accept that you used cocaine, and shortly 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.

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 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.[12]

22 Her Honour also said that she placed some reliance on

what is contained in the transcript of a discussion you had with a person referring to the ways that you used to beat the legal system, and referred to what you maintained 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 conversation 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 merely as big noting.[13]

23 Her Honour was not satisfied that the appellant was

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.[14]

24 Despite that finding, the judge found that the appellant had 'moderate prospects of rehabilitation' but said that he needed to 'overcome what appears to be ... self absorption and accept responsibility to enable ... rehabilitation to occur'.[15]

25 This ground relates to the following passage from the judge's reasons:

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. [emphases added]

26 Counsel submitted that her Honour had sentenced the appellant on an incorrect basis on count 1 because, at the time of offending, a large commercial quantity was two and a half kilograms of methyl amphetamine, not one kilogram.[16] Though the threshold amount was reduced to one kilogram from 1 May 2007,[17] that reduced threshold did not apply to this offence.[18] Counsel submitted that this was a material error which vitiated the exercise of the sentencing discretion.[19] He conceded that the amount of a drug trafficked is not the only measure of the seriousness of the offence but submitted that it is an important measure of seriousness and that the judge had placed considerable reliance on it.

27 During the plea hearing, defence counsel drew her Honour's attention to the fact that a large commercial quantity of the drug was two and a half kilograms. It is unfortunate that the Crown did not reinforce that submission. At the hearing of the appeal, the Crown conceded that her Honour had wrongly sentenced the appellant on the basis that count 1 concerned an amount which was 42 times a large commercial quantity and that this was a sentencing error which required the appellant to be re-sentenced. Her Honour's incorrect view of the extent to which the amount trafficked exceeded a large commercial quantity must have had some effect on the sentence she imposed on this count and I therefore accept the Crown concession. Accordingly, the appellant must be re-sentenced.

28 This makes it unnecessary to consider whether the other grounds of appeal are made out. Nevertheless, I have taken account of the submissions of the appellant in support of the other grounds (and particularly of ground 3 and 4), in re-sentencing the appellant.

29 The appellant was involved in a complex and sophisticated trafficking operation involving manufacturing and distributing methylamphetamine (count 1) and purchasing and on-selling cocaine and MDMA for profit (counts 2 and 4).

30 Count 1 was a very serious offence, which involved trafficking of a very large quantity of methylamphetamine and required the imposition of a lengthy term of imprisonment. The judge's comment that the appellant was 'not slightly or a little over the minimum to constitute the offence, but [has] exceeded that minimum many times over'[20] was apposite, despite her Honour's mistake.

31 The drug trafficking covered by counts 1 and 2 took place over about an 18 month period. The appellant was closely involved in the operations of the 'Company' and the distribution of funds to Mr Mokbel, thus assisting him to avoid apprehension by the police. The amounts of money involved in count 3 were enormous, although her Honour did not find that the appellant received any direct profit from the manufacture of methylamphetamine. The sentencing of the appellant requires significant weight to be given to denunciation, specific and general deterrence

32 Counsel for the appellant submitted that, in sentencing the appellant, her Honour should have given much greater weight to his guilty plea. Although the appellant had given a no comment interview to the police when he was arrested, he had indicated his intention to plead guilty without knowing any details of the Crown case against him and had not contested his guilt at the committal hearing. In support of that submission, counsel relied on the s 6AAA statement which showed that her Honour had only reduced the appellant's sentence by 17.9 per cent to take account of his guilty plea. By comparison, in R v Issa,[21] the s 6AAA declaration made by her Honour showed that the sentences had been discounted by 20 per cent in the case of two counts and 25 per cent in the case of the third. Mr Issa was one of the appellant's co-offenders and had pleaded guilty at a later stage of the proceedings than the appellant. However, I note that the appellant was one of the key leaders of the manufacturing and trafficking operation.

33 In my opinion, the Court should eschew reliance on mathematical comparisons between the percentage discounts given in different cases in order to determine whether there has been a sufficient discount for pleading guilty. As this Court said in Scerri v The Queen:[22]

Sentencing judges are required to synthesise a large number of factors in order to arrive at an appropriate sentence. A plea of guilty is one of those factors. Judges are not permitted to take a starting-point and then add or subtract periods of time representing aggravating or mitigating circumstances (as the case may be) ... There is, as a result, an inherent artificiality in the requirement which s 6AAA imposes on sentencing judges, to revisit sentences which are the product of an instinctive synthesis and state the sentences that would have been imposed absent one factor, the plea of guilty.[23]

Such comparisons conflict with the instinctive synthesis approach to sentencing.

34 They are also contrary to the spirit (if not the letter) of decisions of this Court holding that, when it is alleged that insufficient weight was given to a guilty plea, the relevant question is 'not so much whether the declared s 6AAA discount was adequate, as whether the sentence and non-parole period which were imposed were excessive'.[24] Nevertheless, I would accept the submission that the appellant's very early guilty plea had considerable utilitarian value and should be given significant weight in re-sentencing him.

35 The appellant's counsel also submitted that his prospects of rehabilitation were better than 'moderate' as her Honour had found. This was said to be indicated by his guilty plea, the strong family support available to him, and the fact that he had been awarded a number of certificates for successful completion of courses while he was in gaol.[25] Counsel for the Crown accepted that the appellant should be re-sentenced on the basis that his prospects of rehabilitation were good.

36 It is also necessary to give weight to his limited prior convictions, his medical problems, which will make his period of imprisonment more difficult than for an offender in normal health, and the fact that the property which has been forfeited as a result of his conviction was partly financed by a $180,000 gift from his grandmother.[26]

37 Under s 6B of the Sentencing Act 1991, the appellant must be sentenced on counts 2 and 4 as a serious drug offender.[27] Under s 6E of the Sentencing Act 1991, it is presumed that sentences imposed for a relevant offence on a serious offender will be served cumulatively on any sentences of imprisonment imposed on that offender at the same time, unless the Court orders otherwise. This presumption of cumulation therefore applies to the sentences imposed on counts 2 and 4. Unfortunately, this does not appear to have been drawn to her Honour's attention during the plea hearing.

38 Counsel for the appellant informed the Court that her Honour had imposed a relatively low sentence on count 4 (trafficking in a commercial quantity) and did not cumulate any part of that sentence because the appellant's co-offender, Mr Mansour, had been charged with and convicted of trafficking simpliciter on the basis of the same facts. He submitted that there should be no cumulation of the sentence imposed on count 4, in order to avoid him being treated unfairly in comparison with Mr Mansour. I would not alter the sentence which the judge imposed on count 4, but it should not be regarded as providing any future guidance on the appropriate sentence to be imposed for that offence.

39 Having regard to all of the above matters, I would re-sentence the appellant as follows:

Trafficking in a large commercial quantity of a drug of dependence[28]

Trafficking in a commercial quantity of a drug of dependence[29]

Dealing with the proceeds of crime knowing it was the proceeds of crime[30]

Trafficking in a commercial quantity of a drug of dependence

This amounts to a total effective sentence of 15 years and 9 months' imprisonment. The learned sentencing judge imposed a non-parole period of over 81 per cent of the total effective sentence. If it had been necessary to consider the third ground of appeal, I would have held that the non-parole period should be reduced, because her Honour gave no reasons for fixing a non-parole period amounting to such a high proportion of the total effective sentence. Having regard to that matter, I would

direct that the appellant serve a period of 10 years and 6 months before being eligible for parole.

40 Pursuant to s 6AAA of the Sentencing Act 1991, I declare that, if the appellant had not pleaded guilty to the offence, I would have sentenced him as follows:

Trafficking in a large commercial quantity of a drug of dependence[31]

Trafficking in a commercial quantity of a drug of dependence[32]

Dealing with the proceeds of crime knowing it was the proceeds of crime[33]

Trafficking in a commercial quantity of a drug of dependence

41 These orders would have amounted to a total effective sentence of 19 years and 6 months' imprisonment. I would have directed that the appellant serve a period of 12 years and 8 months before being eligible for parole.

42 I have had the advantage of reading the reasons of Neave JA in draft. I respectfully agree with them and with the re-sentencing she proposes.

[5] R v Rizzo [2009] VSC 17 ('Reasons'), [11]-[12]. Mr Mokbel was referred to as 'A' in the Reasons.

[7] Ibid [54]. The offence was, according to the dates listed on the presentment, committed between 1 January 2006 and 5 June 2007.

[17] Drugs, Poisons and Controlled Substances (Amendment) Act 2006, s 20.

[19] Cf Momcilovic v The Queen [2010] VSCA 50; (2010) 25 VR 436.

[21] [2009] VSCA 633R. Issa was convicted of counts of attempting to pervert the course of justice, trafficking in a large commercial quantity of methylamphetamine, dealing with the proceeds of crime and possession of cannabis.

[23] Ibid [23] (Maxwell P and Buchanan JA).

[24] Lunt v The Queen [2011] VSCA 56, [16] (Nettle JA); see also Scerri [2010] VSCA 287, [24].

[25] These included courses on religion, information technology, hospitality and drug education.

[26] The balance of the purchase price was paid for by way of loan from his grandmother. It was on this basis that the prosecutor agreed that it would be appropriate for the court to take account of the forfeiture. See Sentencing Act 1991, s 5(2A).

[27] See schedule 1, clause 4(a)(i) and (ii).

Poisons and Controlled Substances Act 1981

Poisons and Controlled Substances (Amendment) Act 2006

Rizzo v The Queen [2011] VSCA 146

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Judgment (93 paragraphs)

Rizzo v The Queen [2011] VSCA 146 (17 May 2011)

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