Trimarchi v Regina

1. [1]

   SIMPSON AJA: I agree with N Adams J.

2. [2]

   HARRISON J: I agree with N Adams J.

3. [3]

   N ADAMS J: Stefano Trimarchi seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against the aggregate sentence imposed upon him on 3 August 2018 by his Honour King DCJ SC. The sentence comprised a non-parole period of two years and a head sentence of three years to commence on 25 July 2018. The non-parole period will expire on 24 July 2020.

4. [4]

   The aggregate sentence was imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) in relation to the following five separate offences:

   1. (1)

      Supply a prohibited drug, namely cocaine (1.75 grams) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA). That offence carries a maximum penalty of 15 years imprisonment and/or a fine of $220,000.00. His Honour provided an indicative sentence for this offence of six months imprisonment;

   2. (2)

      Supply a prohibited drug, namely methorphan (15.64 grams) contrary to s 25(1) of the DMTA. That offence carries a maximum penalty of 15 years imprisonment and/or a fine of $220,000.00. His Honour provided an indicative sentence for this offence of 18 months imprisonment;

   3. (3)

      Supply a prohibited drug, namely methylenedioxyamphetamine or MDMA (48.84 grams) contrary to s 25(1) of the DMTA. That offence carries a maximum penalty of 15 years imprisonment and/or a fine of $220,000.00. His Honour provided an indicative sentence for this offence of two years and six months imprisonment;

   4. (4)

      Supply a prohibited drug, namely cocaine (33.98 grams) contrary to s 25(1) of the DMTA. That offence carries a maximum penalty of 15 years imprisonment and/or a fine of $220,000.00. His Honour provided an indicative sentence for this offence of two years imprisonment;

   5. (5)

      Possess an unauthorised pistol (a “BB gun”) contrary to s 7(1) of the Firearms Act 1996 (NSW). That offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period (“SNPP”) of four years imprisonment. His Honour provided an indicative sentence for this offence of three months imprisonment.

5. [5]

   In relation to count 3, the applicant asked for an additional five offences to be taken into account pursuant to s 32 of the Sentencing Act as follows:

   1. (1)

      Possession of 1.3 grams MDMA contrary to s 10(1) of the DMTA;

   2. (2)

      Supply of 5.67 grams MDMA contrary to s 25(1) of the DMTA;

   3. (3)

      Supply of 19.15 grams ketamine contrary to s 25(1) of the DMTA;

   4. (4)

      Supply of 1.33 grams cocaine contrary to s 10(1) of the DMTA;

   5. (5)

      Supply of 67.9 grams butanediol contrary to s 25(1) of the DMTA.

6. [6]

   In relation to count 5, the applicant asked for the following offence to be taken into account pursuant to s 32 of the Sentencing Act:

   1. (1)

      (6) Possession of ammunition without a permit contrary to s 65(3) Firearms Act 1996.

7. [7]

   The applicant relies upon two grounds of appeal:

Factual background

1. [8]

   The applicant was sentenced on an Agreed Statement of Facts which disclosed the following.

2. [9]

   Police were investigating the suspected cocaine supply by the applicant. They conducted electronic surveillance of meetings that the applicant had with another man, Mr Lombardo, at the applicant’s unit in June 2017. After some coded telephone conversations Lombardo attended the unit on 12 June 2017. At that time the applicant supplied him with 1.75 grams of cocaine for $500. The cocaine was in two bags and had purities of 79% and 79.5% respectively (count 1).

3. [10]

   The following day police obtained a search warrant for the applicant’s unit. He was apprehended in Redfern that same day and told there would be a search. When first apprehended he told police that there were “a couple of bags” in the laundry of his unit.

4. [11]

   Following the execution of the search warrant police located in the laundry a “Black Flag” fly spray with removable base and a secret compartment. A resealable plastic bag of tablets containing 15.64 grams of methorphan was found in that hidden compartment (count 2).

5. [12]

   A resealable plastic bag containing five tablets comprising 1.3 grams of MDMA was also found in the hidden compartment (Offence 1, Form 1) and two resealable bags containing 5.67 grams of MDMA were found in the same hidden compartment (Offence 2, Form 1).

6. [13]

   Police also located an “Ajax” can with a similar compartment containing a resealable plastic bag of 19.15 grams of ketamine (Offence 3, Form 1).

7. [14]

   A “Home Select” carpet cleaner can with a similar hidden compartment revealed two resealable plastic bags of cocaine totalling 1.33 grams with purities of 76% and 78% (Offence 4, Form 1).

8. [15]

   A candle with a similar removable base and secret compartment containing two resealable plastic bags of MDMA (48.84 grams) was found in the applicant’s bedroom (count 3).

9. [16]

   A cosmetic bag containing two plastic containers of cocaine was located in the applicant’s bedroom wardrobe. The first bag contained 18.37 grams of cocaine at 57% purity and the other bag contained 15.61 grams and 83% purity (count 4). Although not in the Agreed Facts, it emerged during the proceedings on sentence (and it was common ground) that a set of scales and two mobile telephones were also located in the cosmetic bag.

10. [17]

    A black bear pistol (described as a BB gun) and a shoulder holster were also located in the applicant’s bedroom wardrobe (count 5). Ammunition was located in a box in the bedside table (Offence 5, Form 1).

11. [18]

    A plastic container of empty gelatin capsules and $200 in cash was also found in the kitchen.

12. [19]

    The applicant initially denied supplying any cocaine to Mr Lombardo but admitted possession of the drugs found in his home during the search. He stated that the drugs were all for his personal use and he had not touched them for a long time. He admitted that he owned the BB gun but stated that he had purchased it as a souvenir in Canada 25 years earlier when attending an ice hockey tournament.

13. [20]

    The applicant entered an early guilty plea in the Local Court. His proceedings on sentence were conducted on 21 June 2018. By the time of sentence he was 41 years old.

14. [21]

    The Crown tendered a Pre-Sentence Report prepared by Martin Middleton dated 13 June 2018 and the applicant’s criminal history. The applicant’s record was minor, comprising a charge of using a false instrument in relation to a driver’s license as well as two driving offences. He did not have any previous drug offences.

15. [22]

    The applicant relied upon a report of his psychologist Ms Ann-Marie De Santa Brigida, a reference from a fellow employee who described him as “reliable, hardworking, [and] conscientious”, and banking records from Westpac recording the fact that the applicant was paying off a mortgage for his home unit. His girlfriend of approximately two years, Dobrica Boceski, gave evidence that she had a good relationship with the applicant, held him in high regard and that they were undergoing IVF in order to conceive a child. Ms Boceski indicated that she was standing by the applicant during his period of imprisonment and that he had expressed remorse to her.

16. [23]

    Before his arrest, the applicant was employed full-time working as a rigger at the Star Event Centre. He had been working in this position for approximately five years and worked six to seven days a week. He also had a supportive family with whom he regularly met. He had always been employed and had been a successful ice hockey player.

17. [24]

    The applicant told both Ms De Santa Brigida and Mr Middleton that he started using ecstasy and MDMA when he was young and later took other drugs including cocaine and amphetamines on a recreational basis. He also told both of them that he had stopped using drugs two years ago when he started his relationship with Ms Boceski.

18. [25]

    The applicant gave some short evidence on his proceedings on sentence. His evidence was that the drugs found at his unit were all left over from former drug use and that he did not propose to sell them. When the sentencing judge pointed out that this evidence traversed his pleas of guilty, his counsel conferred with the applicant. As a result, the applicant did not return to the witness box. Rather, counsel indicated that his instructions were that the applicant was intending to supply the drugs located in the unit, that he did not wish to give further evidence and that he did not rely on anything he had said about personal use in either the Pre-Sentence Report or the psychologist’s report.

19. [26]

    It was submitted on behalf of the applicant that his prospects of rehabilitation were reasonably positive and that an intensive correction order (“ICO”) under s 7 of the Sentencing Act was an appropriate sentence. The imposition of an ICO was opposed by the Crown.

20. [27]

    After going through the relevant facts, the sentencing judge stated the following in relation to the objective seriousness of the matters:

21. [28]

    As for whether the applicant had ceased using drugs his Honour stated:

22. [29]

    His Honour noted that the applicant is from a close family. He has weekly contact with his mother and is also in close contact with his father and siblings. They are all supportive of him. His Honour accepted the evidence of Ms Boceski that the applicant was remorseful, embarrassed and had assured her that he would not commit such offences again. His Honour was satisfied that the applicant had good prospects of rehabilitation.

23. [30]

    His Honour later stated that :

Applicant’s submissions

1. [31]

   Under ground 1 the applicant contended that the sentencing judge erred by failing to make any proper assessment of the objective seriousness of the DMTA offences. It was submitted that the assessment of the objective gravity of an offence forms a significant and essential part of the sentencing process and that this requirement will not be satisfied by a bare recitation of the facts constituting the offences and a reference to the “objective features of the offences”: Daher v R [2018] NSWCCA 287 at [44]-[45].

2. [32]

   It was submitted that it was necessary for the sentencing judge to assess each offence for its own objective gravity even though ultimately he imposed an aggregate sentence. The fact that his Honour did not do so is evident from his observation that “it is not sensible to assess the independent objective seriousness of each individual offence”. It was submitted that this case falls into the flawed category of cases referred to in Sponberg v R [2017] NSWCCA 120 at [26].

3. [33]

   It was further submitted that the sentencing judge’s overall approach was to consider whether the applicant was involved in trafficking to a substantial degree and this meant that his Honour failed to properly consider whether a full-time sentence was appropriate. It was submitted that this approach has been disproved in Parente v R [2018] 96 NSWLR 633; [2017] NSWCCA 284.

4. [34]

   In relation to ground 2, it was submitted that the sentence imposed was manifestly excessive having regard to the misapplication of principle referred to under ground 1.

Crown submissions

1. [35]

   The Crown submitted that the sentencing judge carried out his task as appropriate to the circumstances before him. There was very little to differentiate between the objective seriousness of each individual supply. This is to be contrasted with the decision of R A Hulme J in R v Campbell; R v Smith [2019] NSWCCA 1 relied upon by the applicant in his written submissions.

2. [36]

   It was further submitted that his Honour made no reference to the “Clark principle” and this Court would not conclude that his Honour erroneously applied this principle: see R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep).

3. [37]

   Nor, it was submitted, was the sentence “unreasonable” or “plainly unjust”.

Consideration

1. [38]

   This application turns on the adequacy of the sentencing judge’s findings of objective seriousness. Although his Honour imposed an aggregate sentence in this matter, it is to be accepted that this does not extinguish the requirement to assess the criminality involved in the individual offences for which the applicant was to be sentenced: R v Brown [2012] NSWCCA 199 at [17].

2. [39]

   The existence of the obligation on a sentencing judge to assess the objective seriousness of the offence(s) is without question. As Simpson J (as her Honour then was) (Hall J agreeing) observed in R v Campbell [2014] NSWCCA 102 at [27]:

3. [40]

   When determining a ground of appeal asserting that a sentencing judge failed to make any finding of objective seriousness, regard must be had to the sentencing reasons as a whole. In Delaney v R; R v Delaney [2013] 230 A Crim R 581; [2013] NSWCCA 150 at [56] Hoeben CJ at CL (with whom Harrison and Beech-Jones JJ agreed) stated the following in the context of sentencing for drug offences:

4. [41]

   A similar complaint was made in Gal v R [2015] NSWCCA 242 at [29], where Beech-Jones J had regard to the decision in Delaney v R; R v Delaney and then noted at [34]:

5. [42]

   In R v Van Ryn [2016] NSWCCA 1, R A Hulme J (with whom Leeming JA and Johnson J agreed) observed at [133]:

6. [43]

   The scope of the requirement for a sentencing judge to make a finding of objective seriousness was considered by Macfarlan JA (with whom Latham and Campbell JJ agreed) in Sponberg v R in the context of an offence carrying a standard non-parole period. In that context Macfarlan JA observed at [26]:

7. [44]

   As recently noted by Johnson J in Tepania v R [2018] NSWCCA 247 at [107]: “[A]ssessment of the objective gravity of an offence forms a significant part of the sentencing process with respect to all offences”. More recently, in Daher v R, Payne JA (with whom Simpson AJA and Johnson J agreed) observed at [54], in the context of considering a ground of appeal in similar terms to the present:

8. [45]

   Applying these principles to the present appeal, it should first be noted that the only offence upon which the applicant stood to be sentenced which carried a standard non-parole period was count 5, the Firearms Act offence, and no complaint is made in relation to his Honour’s findings in relation to that count. The statutory requirement in s 54A(2) of the Sentencing Act that an express finding of objective seriousness must be made in relation to standard non-parole offences in order to make a comparison with offences in the “middle of the range of seriousness” does not apply to the DMTA offences.

9. [46]

   As can be seen from the passages extracted above at [25], his Honour went through each of the separate drug offences in turn indicating the quantity and type of drug found in each location and comparing it to the maximum quantity covered by each offence.

10. [47]

    The nub of the applicant’s complaint arises from his Honour’s statement extracted above at [25] that it was not “sensible to assess the independent objective seriousness of each individual offence….”. Taken in isolation, this comment is contrary to established sentencing principle. A sentencing judge is clearly required to make a separate finding of seriousness in relation to each separate offence. But these words relied upon by the applicant cannot be viewed in isolation. They are part of a sentence prefacing his Honour’s observations that there were a number of common factors relevant to the objective seriousness of each of the drug offences in that:

    1. (1)

       all of the drugs were found on the one occasion in the applicant’s unit;

    2. (2)

       all of the drugs were distributed in different locations, some in secret compartments by a moderately sophisticated method (a hidden compartment at the bottom of various aerosol cans and a candle);

    3. (3)

       the individual quantities relevant to the individual charges were relevant to any sentence that might be imposed in respect of that charge, although quantity alone is not the sole determinant of an appropriate sentence; and

    4. (4)

       each of the offences needed to be assessed in the overall circumstances of the location of a “smorgasbord” of drugs on a single occasion in the offender’s premises.

11. [48]

    In addition to his Honour’s specific references to these matters in the impugned passage, his Honour had earlier noted that scales had also been located and the applicant had pleaded guilty to an actual supply of $500 worth of cocaine to Mr Lombardo (thus each deemed supply was not an isolated event).

12. [49]

    During the hearing of this appeal Simpson AJA inquired of counsel for the applicant how the DMTA offences could be distinguished from each other (apart from their quantity). Counsel replied:

13. [50]

    It is difficult to see on the facts in this matter how where in the unit the drugs were located could increase or decrease the criminality of each separate offence. The agreed statement of facts did not otherwise disclose anything further about each of the separate drugs found in the unit that would distinguish their respective criminality. This leaves the only two factors which were not common to all of these offences as being the amount and type of drug; factors his Honour identified in the passages I have extracted above at [25] in any event.

14. [51]

    The indicative sentences identified by his Honour differ from each other. The difference between these indicative sentences corresponds to the differences in drug types and quantities. That is, it is clear that his Honour had regard to both the amount found in each location and the type of drug as being a relevant factor increasing or decreasing the relevant penalty to be imposed for each offence. The highest indicative sentence on count 3 was for a larger amount of drugs and it was also the offence in relation to which five of the six additional matters were taken into account under s 32 of the Sentencing Act.

15. [52]

    I am not satisfied that his Honour’s reasons disclose that he failed to make an assessment as to the objective seriousness of each separate drug offence. What his Honour did was identify the common features and the different features (the quantities and type of drug) of each offence. Whilst it is to be accepted that his Honour did not repeat the common features four times (after each drug offence pertaining to the drugs found in the unit), his decision not to do so and his reasons why were expressly stated.

16. [53]

    As for the applicant’s contention that the sentencing judge misdirected himself by asking the question posed in R v Clark, since disapproved in Parente v R, this complaint cannot be sustained. There is no reference to the decision of R v Clark, or the principle said to have arisen from it, in his Honour’s remarks on sentence. That “Clark principle” was that unless “exceptional circumstances” existed, an offender who has been trafficking in drugs “to a substantial degree” was to be sentenced to a term of full-time imprisonment. To the extent that it is implicitly submitted that his Honour failed have regard to the decision in Parente v R, it is noted that the applicant’s counsel brought that decision to the attention of the sentencing judge in the context of submitting that an ICO could be imposed. The transcript of the proceedings on sentence reflects that his Honour indicated that he was already aware of the decision.

17. [54]

    The applicant’s complaint that his Honour incorrectly applied the “Clarke principle” was based on two matters. The first was the fact that his Honour made reference to there being a “smorgasbord” of drugs in the applicant’s unit. The word “smorgasbord” is a word of Swedish origin. It is defined in the Macquarie Dictionary as meaning “a buffet meal of various hot and cold hor d’oevres, salads, meat dishes etc”. The second of the two definitions provided for the word in the Macquarie Dictionary is “a wide choice or variety”. It is clear that his Honour was using the term in the context of this second definition. That is, that a wide variety of drugs were found. It does not follow from the fact that his Honour had regard to the variety of drugs involved that his Honour applied the “Clark principle”.

18. [55]

    The second matter relied upon by the applicant to assert that his Honour incorrectly applied the “Clark principle” was the fact that his Honour was satisfied that the s 5 threshold had been passed. Section 5(1) of the Sentencing Act provides that a “court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate”. His Honour's finding that the threshold had been met in this case followed his Honour’s statements that he was satisfied that the applicant was “seriously involved with prohibited drugs” and that the sentence imposed must reflect the objective seriousness of the offences and provide “for both specific and general deterrence in relation to this offender and those who would commit offences of this nature.”

19. [56]

    For these reasons the applicant has not established that the sentencing judge erred in his assessment of the applicant’s offending by failing to make any or any proper assessment of the objective seriousness of that part of the applicant’s offending comprising offences under the DMTA.

20. [57]

    As for ground two, no separate written submissions were made in relation to the applicant’s contention that the sentence was manifestly excessive. Rather, it was submitted that the error identified under ground one led to the sentence being manifestly excessive. Despite this, at the hearing of the appeal, the applicant’s counsel further submitted, in support of ground two, that there was limited indicia of supply, only $200 cash located, a “number” of resealable bags were found, “some” gelatine capsules and no records of sales of any type. Thus, it was submitted, there was “nothing to support a motivation of making a profit on the part of the applicant”. That is, this was a case of “recoupment rather than profit” given the change in the applicant’s life circumstances.

21. [58]

    In order to establish that the sentence imposed on the applicant was manifestly excessive it is necessary for him to establish that it was “unreasonable” or “plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. It is not a question of whether this court would have exercised its sentencing discretion differently: Markarian v The Queen at [28].

22. [59]

    The applicant was sentenced to an aggregate sentence of three years imprisonment with a non-parole period of two years. That sentence was imposed for four supply offences, each of which carried a maximum penalty of 15 years imprisonment, and a weapons offence carrying a maximum penalty of 14 years imprisonment with a standard non-parole period of four years imprisonment. The maximum penalty is a relevant guidepost when considering whether a sentence is manifestly excessive. In addition, six further offences were taken into account under s 32 of the Sentencing Act. Although these Form 1 offences were not relevant to the assessment of the objective seriousness of counts 3 and 5, such offences may be taken into account by the sentencing judge so as to give greater weight to personal deterrence and retribution: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42].

23. [60]

    The amounts of the prohibited drugs involved were not insignificant. The actual supply of cocaine, in the context of the coded telephone calls, was not an isolated incident. Some degree of accumulation was warranted given the different types of drugs involved. By reference to the indicative sentences, one of which was two years and six months imprisonment, it is clear that considerable concurrence was allowed. In addition, although his Honour described his adjustment of the relationship between the non-parole period and the head sentence as “minor”, in fact the adjustment resulted in a ratio of 66.6% rather than the statutory ratio of 75%, an adjustment that could not be described as “minor”.

24. [61]

    As the High Court observed in Lowndes v The Queen (1999) 195 CLR 665 at 671-672; [1999] HCA 29 at [15] (footnote omitted):

25. [62]

    Even allowing for the applicant’s favourable subjective case, including his previous solid employment history and absence of prior convictions of this type, the applicant has failed to establish that the sentence imposed on him was unreasonable or plainly unjust. That is the test; not whether this court may have exercised its discretion in a manner different to that of the sentencing judge.

ORDERS

1. [63]

   The orders I would propose are:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.