Adornetto v The State of Western Australia
[2017] WASCA 57
•27 MARCH 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ADORNETTO -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 57
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 3 MARCH 2017
DELIVERED : 27 MARCH 2017
FILE NO/S: CACR 96 of 2016
BETWEEN: CARMELO ADORNETTO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :HERRON DCJ
File No :IND 1703 of 2014
Catchwords:
Criminal law - Appeal against sentence - Possession of cannabis with intent to sell or supply - Sale of cannabis - Conspiracy to supply cannabis to another - Total effective sentence of 6 years' imprisonment - Whether total effective sentence in breach of totality principle - Whether total effective sentence in breach of parity principle
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1), s 33(2)
Result:
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Mr S Watters
Respondent: Mr J Scholz
Solicitors:
Appellant: Corporate Counsel Lawyers
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barry v The State of Western Australia [2012] WASCA 175
Ngo v The Queen [2017] WASCA 3
Rillotta v The State of Western Australia [2017] WASCA 55
REASONS OF THE COURT:
Summary
The appellant was convicted of the following offences on his plea of guilty, entered two weeks prior to the commencement of the trial of the indictment on which he and his co‑accused were charged:
1.Two counts of selling a prohibited drug, namely cannabis; contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (Drugs Act).
2.One count of possession of a prohibited drug, namely cannabis, with intent to sell or supply it to another; contrary to s 6(1)(a) of the Drugs Act.
3.One count of conspiracy to supply a prohibited drug, namely cannabis, to the appellant; contrary to s 6(1)(c) and s 33(2) of the Drugs Act.
The appellant now seeks to appeal against the total effective sentence of 6 years' imprisonment imposed in respect of these offences. He contends that the total effective sentence infringes the parity principle and the first limb of the totality principle of sentencing.
For the following reasons, neither proposed ground is established and the appeal must be dismissed.
Circumstances of offending
Background
The appellant was one of six co-accused who were all charged as a result of an investigation conducted by the Organised Crime Squad into the illegal supply of cannabis from South Australia to Western Australia by participants in the trucking industry. Two of his co‑offenders, Riccardo Rillotta and Roberto Rillotta, operated a cannabis supply business. They resided in South Australia and sourced the cannabis from that State.
The Rillotta brothers used Devin Zippel, a South Australian truck driver, to transport the cannabis from South Australia to Western Australia. Mr Zippel used a Western Australian truck driver, Rodney Trouchet, to assist him in the delivery of the cannabis once it got to Western Australia.
The two main distributors of cannabis in Western Australia were the appellant and Giuseppe Franchina. The Rillotta brothers would supply cannabis to them on a regular basis. Two other men had peripheral roles.
Sale of cannabis on 11 July 2013
On 11 July 2013, the appellant sold 12 pounds of cannabis to an undercover officer for $50,400. The appellant engaged a co‑offender to conduct this transaction.
The appellant contacted the undercover officer and arranged to meet him in the car park of a shopping centre at about 11.45 am on 11 July 2013. The undercover officer told the appellant that he wanted $40,000 worth of cannabis. The appellant told the undercover officer that he had 12 pounds (approximately 5.4 kg) of cannabis and that the price was $4,200 a pound (which would be a total of $50,400). The appellant and the undercover officer discussed how long it would take the officer to get the additional $10,400.
The appellant told the undercover officer to go to a street in Dianella at 2.00 pm, where the transaction would be conducted by a 'guy in a white van'. The appellant telephoned his associate to arrange for the delivery of the cannabis and collection of the money.
At about 2.00 pm on 11 July 2013, the undercover officer drove to the appointed street in Dianella. As he drove down the street, he saw the appellant travelling in his vehicle in the opposite direction. The appellant gestured for the undercover officer to keep driving down the street. The undercover officer drove down the street and pulled up next to a white Toyota van, occupied by the appellant's associate. The undercover officer told the appellant's associate that he only wanted 9 pounds. The appellant's associate said that he thought it was 12 pounds.
The appellant then drove past, and his associate gestured for the appellant to stop. They had a conversation. The appellant parked a short distance away. The undercover officer then approached the appellant and told the appellant that it would take him up to three weeks to get the extra $10,400. The appellant said that was fine and told the undercover officer to take the 12 pounds. The appellant then drove away.
The appellant's associate then gave the undercover officer a box containing 12 pounds of cannabis, and the undercover officer gave the appellant's associate $40,000 in cash. Afterwards, the appellant's associate met the appellant and gave him the $40,000. The appellant gave his associate at least $2,000 for the assistance he provided.
On 24 July 2013, the appellant met the undercover officer at the street in Dianella, where the undercover officer gave the appellant the outstanding $10,400.
Possession and sale of cannabis on 17 August 2013
On 24 July 2013, the appellant met with the undercover officer and was told that the officer wanted another 10 pounds (approximately 4.5 kg) of cannabis on around 5 August 2013. They met again at a tavern on 30 July 2013, and spoke about where the cannabis came from. The appellant told the undercover officer that the cannabis came from 'over east' by road. The undercover officer proposed that the next load of cannabis be dropped off in either Norseman or Kalgoorlie. The appellant said that this could be done but it would have to be 20 pounds (approximately 9 kg).
On 9 and 10 August 2013, telephone conversations occurred between the appellant, the Rillotta brothers and Mr Zippel discussing the proposed drop‑off in Kalgoorlie. Ultimately, Riccardo Rillotta told the appellant that the driver would not go to Kalgoorlie because 'it was too hot'.
The appellant met with the undercover officer on 11 August 2013 and told him that the cannabis would have to be dropped off in Perth, and would arrive on 14 August 2013. On 12 August 2013, the appellant telephoned Riccardo Rillotta and asked for two 10 pound packages of cannabis.
On Tuesday 13 August 2013, Riccardo Rillotta telephoned the appellant and said that the cannabis would arrive on Friday afternoon and be delivered to the appellant on Saturday morning. Riccardo Rillotta told the appellant that he would come to Perth on Monday or Tuesday to make sure that everything was 'calibrated' (ie the money was in order).
On 14 August 2013, the appellant telephoned the undercover officer, and told him that the cannabis would arrive on Saturday morning.
At about 10.00 am on Saturday, 17 August 2013, Riccardo Rillotta telephoned the appellant and told him that the cannabis would arrive in about 20 minutes. The appellant called the undercover officer and told him to attend the Dianella street as soon as possible. Mr Trouchet delivered two boxes to the appellant. Just after 11.00 am, the undercover officer arrived at the Dianella street, pulling up alongside the appellant's vehicle. The appellant told the undercover officer that there was a brown box hidden in some bushes, to which he pointed. The undercover officer retrieved the box, which contained 10 pounds of cannabis, from the bushes and gave the appellant $42,000 in cash before departing.
The fate of the other 10 pounds of cannabis delivered to the appellant is unknown.
On Monday, 19 August 2013, Riccardo Rillotta flew from Adelaide to Perth and met the appellant, who paid for the 20 pounds of cannabis. It was at this time that Riccardo Rillotta discovered that Mr Franchina, to whom 30 pounds of cannabis from the same shipment was delivered on 16 August 2013, had been arrested.
Conspiracy to supply cannabis from October to December 2013
Following the arrest of Mr Franchina in August 2013, the other participants in the operation were wary and nothing happened for a while. Eventually a Mr Lopresti agreed to supply the appellant with more cannabis and enlisted the help of Riccardo Rillotta to do so. Mr Lopresti and the appellant discussed a supply of between 20 and 50 pounds of cannabis at a price of $3,300 per pound. Ultimately, neither Mr Lopresti nor Riccardo Rillotta could source any cannabis, and the transaction did not materialise.
Mr Lopresti, who was in Adelaide, called the appellant on 14 October 2013, and asked whether the appellant was interested in doing 'any work'. The appellant said that he was interested, and he arranged to meet Mr Lopresti when he came to Perth later in the week.
On 15 October 2013, the appellant met with the undercover officer. During a telephone conversation on 25 October 2013, the appellant agreed with Mr Lopresti that he would pay $3,300 per pound of cannabis. The amount which Mr Lopresti would supply was not fixed, and would depend on how much Mr Lopresti was able to access.
Over the next few weeks, there were a series of telephone conversations between the appellant, Mr Lopresti and Riccardo Rillotta. The appellant was actively pursuing the supply of cannabis from either or both of them. An agreement was made between the appellant and Mr Lopresti for the supply of cannabis to the appellant, which Riccardo Rillotta subsequently joined.
The appellant's offending was motivated by financial gain.
Personal circumstances
The appellant was 65 years old at the date of sentence. He immigrated to Western Australia in 1956 with his mother. The appellant had an unremarkable but positive upbringing, and had a good relationship with extended family members. The appellant married his wife in 1975, and they had three daughters. The appellant had a history of stable employment as a motor mechanic, and had owned his own repair business since 1999. The appellant had no relevant criminal record and was generally in good health, although he suffered from anxiety, hypertension and a pulmonary condition that could be treated in prison. The appellant was not a user of cannabis or other illicit drugs.
The sentencing judge accepted that the appellant was at low risk of reoffending, but did not accept that he demonstrated any genuine remorse for his offending.
Sentencing judge's approach
As with the Rillotta brothers, the sentencing judge recognised that general deterrence was the primary sentencing consideration and that, while mitigating circumstances personal to the appellant were relevant, less weight was given to them. The sentencing judge took account of the appellant's plea of guilty, reducing the notional head sentence which he would otherwise have imposed for each offence by 10% under s 9AA of the Sentencing Act 1995 (WA).
The sentencing judge referred to the parity principle of sentencing, and expressed the view that the circumstances of the appellant's offending were very similar to those of the Rillotta brothers. The sentencing judge observed that, while the Rillotta brothers were at the head of a cannabis exportation business based in South Australia, the appellant had an important and crucial role in the drug distribution network. The sentencing judge said that the appellant was:
actively involved in seeking to source cannabis from South Australia including from at least the Rillottas and Mr Lopresti. Together with Mr Franchina, you were their main contact in Western Australia. Without you actively seeking cannabis from South Australia and encouraging them to supply to you, their business would not have existed or flourished.
The business needed customers; you were one of their main customers. Although you have been convicted of four offences and each of the Rillottas have only been convicted of two offences, I do take into account you have pleaded guilty whereas they have been found guilty after trial. You have therefore accepted some responsibility for your offending although as I've earlier expressed, I'm doubtful you show any genuine remorse.
…
So they are more to blame in that regard than you, but your involvement was at a similar level to theirs, it was of a similar level to Mr Franchina (sentencing ts 55).
These findings may be compared with the following findings which the primary judge made in sentencing the Rillotta brothers:
In my view your culpability is greater than Mr Adornetto even though Mr Adornetto has, on his own pleas of guilty, been convicted of more offences which covered an extended period of time, because you were (indistinct) a sophisticated cannabis exploitation business. You were both involved in the sourcing of cannabis and in the organisation and coordination of the transportation of the cannabis to Western Australia. It was, as I've found, already well established at the time of the first telephone intercept.
Without such a business having being operated by you, none of your co‑offenders would have been in a position to commit the offences on which they have been convicted.
I accept though that both Mr Adornetto and Mr Franchina, as is evident from the telephone intercepts, were actively seeking the supply of cannabis from you. However, they were reliant upon you to source cannabis and provide it to them in Western Australia (sentencing ts 25 - 26).
In the appellant's case, taking all the matters to which he had referred into account, the sentencing judge concluded that a sentence of 3 years 8 months' immediate imprisonment was appropriate for each of the four offences of which the appellant was convicted.
The sentencing judge then considered the totality principle, and concluded that a total effective sentence of 6 years' imprisonment appropriately reflected the appellant's overall criminality in committing the offences. The sentencing judge said that, in reaching that conclusion, he had regard to all of the relevant circumstances including the need for protection of the public from this type of drug dealing, the need for punishment and the need for personal and general deterrence.
In order to achieve that overall sentence, the sentencing judge reduced the sentence for count 1 (the sale on 11 July 2013) to 2 years 4 months' imprisonment, and ordered that it be served cumulatively upon the sentence on count 5 (possession of the cannabis received on 17 August 2013). The sentences for the other counts were to be served concurrently with the sentences for counts 1 and 5, and with each other.
Grounds of appeal
The appellant seeks to appeal on two grounds:
1.The total sentence of 6 years immediate imprisonment imposed upon the appellant offended the principle of parity as it was not markedly disparate to the similar terms imposed upon the appellant's co‑offenders Riccardo Rillotta and Roberto Luigi Rillotta, when it should have been, so as to properly reflect the appellant's reduced criminality compared to that of those two co‑offenders and his pleas of guilty.
2.The learned judge erred in imposing a total effective sentence that infringed the first limb of the principle of totality, having regard to the overall criminality involved in the various offences when viewed in their entirety and in all the circumstances of the case, including those referable to the appellant.
The application for leave to appeal on these grounds was referred to the hearing of the appeal.
The parity principle
The appellant's first ground of appeal invokes the parity principle. The principles to be applied in determining whether this court should interfere with a sentence on parity grounds were summarised by Mazza JA in Barry v The State of Western Australia:[1]
The parity principle is based upon the norm of equality before the law which requires, so far as the law permits, that like cases be treated alike and that there be different outcomes where there are relevant differences.
Whether the parity principle has been infringed does not depend upon a finding that the sentence in question is manifestly excessive. It depends upon whether, objectively speaking, the disparity (or lack of it) gives rise to a justifiable sense of grievance.
What is required is a comparison of the sentence imposed on each offender and an evaluation of their involvement in the commission of the offence and their antecedents. (citations omitted)
[1] Barry v The State of Western Australia [2012] WASCA 175 [55] - [57].
The principles to be applied in determining whether this court should interfere with a sentence on parity grounds are also set out in Ngo v The Queen.[2] As noted in that case, the question is essentially whether a marked disparity or lack thereof gives rise to an objectively justifiable sense of grievance.
[2] Ngo v The Queen [2017] WASCA 3 [36] - [39].
Disposition of ground 1 (parity)
The sentencing judge identified the level of criminality involved in the appellant's offending as less than that of the Rillotta brothers and as similar to that of Mr Franchina. The appellant pleaded guilty, while the other three offenders were convicted after trial. The significance of the appellant's plea is reduced by the Rillotta brothers' offer to plead to the charges of which they were ultimately convicted and by the lateness of the appellant's plea. Notwithstanding those matters concerning the pleas, the circumstances would ordinarily result in the appellant receiving a significantly lower sentence than the Rillotta brothers in respect of the same offending.
However, in considering the issue of parity, it is important to recognise that the appellant was convicted of two additional offences, committed in July and October - December 2013. The maximum penalty for the conspiracy offence was 20 years' imprisonment and a fine of $75,000. The difference in the number and character of the offences of which the Rillotta brothers were convicted explains the lack of disparity in the total effective sentences of the appellant and the Rillotta brothers. The conspiracy offence in particular involved a substantial degree of additional criminality beyond the offences of which the Rillotta brothers were convicted. It involved the appellant actively pursuing the supply of significant quantities of cannabis even after the arrest of Mr Franchina (of which the appellant was aware). This conduct demonstrated the appellant's determination to continue to run the risk of apprehension to obtain a financial reward, and highlighted the weight to be given to considerations of deterrence.
The appellant's appeal counsel correctly accepted that the additional offences explained the disparity between the total effective sentences of Mr Franchina (4 years' imprisonment) and the appellant (6 years' imprisonment) (appeal ts 2 ‑ 3). Those additional offences equally explain the small disparity (3 months) between the appellant's total effective sentence and those of the Rillotta brothers. While the Rillotta brothers were charged with the conspiracy offence, they pleaded not guilty to that offence and the jury were unable to reach a verdict on that count. The State elected not to re‑try the conspiracy count against the Rillotta brothers, who were to be sentenced on the basis that they had not committed that offence. That basis for sentencing the Rillotta brothers stands in contrast to the basis on which the appellant, who was convicted of the conspiracy count (albeit on his plea of guilty), was to be sentenced.
We also note that Roberto Rillotta offended while he was on parole under South Australian sentences, and must serve the 16-month balance of those sentences in addition to the sentence which the sentencing judge imposed.
The sentencing judge's application of the parity principle is reflected in the lower sentence which the appellant received for count 5 on the indictment (3 years 8 months' imprisonment) compared to the 5 year sentences received by the Rillotta brothers for the related count 4. However, when all of the offending is taken into account, the overall criminality involved in the appellant's conduct can be seen to be comparable with that of the Rillotta brothers. The lack of disparity in the total effective sentences does not give rise to any objectively justifiable sense of grievance by the appellant.
Disposition of ground 2 (totality)
The operation of the first limb of the totality principle is referred to in our reasons in Rillotta v The State of Western Australia.[3]
[3] Rillotta v The State of Western Australia [2017] WASCA 55 [16] ‑ [19].
The maximum penalty for an offence against s 6(1)(a) and s 6(1)(c) of the Drugs Act relating only to cannabis is a fine of $20,000 and a term of 10 years' imprisonment. The maximum penalty for the conspiracy offence against s 6(1)(c) and s 32(2) of the Drugs Act is, as noted above, 20 years' imprisonment and a fine of $75,000.[4]
[4] Section 33(2)(a) and s 34(1)(b) of the Drugs Act.
The current sentencing practice in relation to offences against s 6(1) and s 7(1) of the Drugs Act involving cannabis is considered in Rillotta v The State of Western Australia.[5]
[5] Rillotta [21] ‑ [31].
The appellant was an active principal of his own cannabis distribution operation in Western Australia, and actively sought cannabis to supply that operation over an extended period of time. The appellant was in regular contact with Riccardo Rillotta, continually seeking further quantities of cannabis from Riccardo Rillotta, and urging him to transport and source more cannabis. The appellant was not deterred by the arrest of Mr Franchina, continuing to try and get as much cannabis as Mr Lopresti or the Rillotta brothers could access. The appellant's sustained offending was not isolated or opportunistic, but was premeditated conduct undertaken for the purposes of obtaining financial reward which required significant planning. The offending only ceased on the appellant's arrest by police. The appellant received significant amounts of cash. Apart from the appellant's late plea of guilty, there were no substantial mitigatory circumstances.
Having regard to all relevant sentencing principles a total effective sentence of 6 years' imprisonment bore a proper relationship to the overall criminality involved in all of the appellant's offences, viewed in their entirety and having regard to all the circumstances of the case, including those referable to the appellant personally.
Orders
For the above reasons, we would grant leave to appeal on both proposed grounds of appeal but dismiss the appeal.
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