Director of Public Prosecutions v Brizzi

[2020] VCC 204

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01286

DIRECTOR OF PUBLIC PROSECUTIONS

v

VINCENZO BRIZZI

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 March 2020
CASE MAY BE CITED AS:	DPP v Brizzi
MEDIUM NEUTRAL CITATION:	[2020] VCC 204

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Saunders	Office of Public Prosecutions
For the Accused	Ms S. Radovic	Radovic Lawyers

HIS HONOUR: 

1Parity in sentencing offenders is recognised as a very important principle, guiding the proper exercise of sentencing discretions.  It is an aspect of the broader fundamental principle that every citizen is to be treated as equal before the law.  Thus, when this principle is given practical effect in sentencing, it is vital to the ongoing confidence of the community and the criminal justice system that consistency can be easily discerned.

2Consistency in sentencing is, of course, acutely focused when one offence is committed by two or more co-accused.  That is very much the situation here, because you, Vincenzo Brizzi, have pleaded guilty to a charge of trafficking in not less than a commercial quantity of methylamphetamine.

3Although a co-accused, Mr Paul Condo, was not named on your indictment, it is well understood that you committed the crime of trafficking in not less than a commercial quantity of methylamphetamines during the period of November 2016 to March 2017 in the Mildura and Red Cliffs area, with Paul Condo.

4You also pleaded guilty to a charge of dealing with the proceeds of crime, being $165,000 in cash, buried on Mr Condo's property.  You also pleaded guilty to another charge of dealing with the proceeds of crime, being a small amount of $4,530 in cash.  Finally, you pleaded guilty to a summary offence of refusing to provide the security code for your phone so as to enable the police to access your information.

5Mr Condo pleaded guilty before you did.  I imposed a sentence and published my reasons for the sentence on 10 April 2019.  It is not necessary to state what my sentence was, because the Court of Appeal allowed the Director of Public Prosecutions appeal and resentenced Mr Condo to a total effective sentence of 10 years with a minimum non-parole period of seven years.  Thus, the important question of parity and consistency relates to that sentence imposed by the Court of Appeal in place of my manifestly inadequate sentence imposed on
10 April 2019.

6Much of, if not all, the explanation of why you did not plead guilty at the same time as Condo relates to this question of parity.  As I have made clear,
the principle of parity requires careful analysis of what facts and circumstances differ or are the same between co-accused in respect of the offending conduct and in respect of the offenders themselves. 

7At the time of my sentencing Condo, it was the prosecution case that Condo was a senior participant in a drug trafficking syndicate led by you.  He was sentenced by me and by the Court of Appeal on that basis, perhaps fortuitously for him.

8You, Mr Brizzi, have always contended that you were not the syndicate's leader, or more senior in the hierarchy than Condo.  The prosecution now agrees. 
There is no basis for me to do otherwise than sentence you as equal to
Mr Condo in your role in the trafficking operation.

9The Court of Appeal in fact endorsed much of my sentencing remarks and observations with respect to Mr Condo, concluding that my error was that the sentence did not reflect the identified gravity of the offending.  Thus, I will repeat a number of matters set out in my earlier sentencing remarks and repeat some remarks from the Court of Appeal judgment.

10So the syndicate that you and Mr Condo operated, both as senior participants, trafficked methamphetamine on a large scale throughout Mildura and
Red Cliffs.  Because of the coded conversations intercepted by the police between you, Mr Condo and others, it has not been possible to be precise as to the amount of methylamphetamines bought and sold.

11What can be discerned is that there were a number of sales in ounce lots, and there was the use of specimen containers to store and traffic methylamphetamines, such containers holding just under an ounce of methylamphetamines.

12Recorded conversations and then subsequent police investigations at Condo's property revealed that you and he had buried 846 grams of methylamphetamines in a PVC pipe, along with the $165,000 in cash which was the subject of Charge 2.  The 846 grams was powder with both mixed methamphetamines and other powders.

13The trafficking activity was over a period of months from September - I think
I earlier said November - September 2016 and March 2017, and it came to an end when you and Condo were arrested.

14The gravity of drug trafficking operations is connected to, if not determined by, the quantities involved.  You have pleaded guilty to trafficking in not less than a commercial quantity.

15As to this matter, the Court of Appeal judgment with respect to Condo guides me with respect to the conclusions that I draw as to the quantum, and thus,
the gravity.  The Court of Appeal said, at paragraph 12:

'We consider that it must have been at the very top of the commercial quantity range, just below a level appropriate for a large commercial quantity.  This conclusion was not disputed by the parties.  At a later point, the Court of Appeal said that the quantities must have gone perilously close to a large commercial quantity.'

16While much about this sentencing process simply flows from what was determined by the Court of Appeal, what should not be forgotten is the significant damage the drug you trafficked in - that is, methylamphetamines - what significant damage it causes in our community.

17I said in the sentencing remarks relating to Mr Condo, and I repeat them,
as they bear repetition:

'What is clear is the drugs you sold contributed significantly to the blight of methylamphetamine in the regional town of Mildura and surrounding districts.  Ice is a scourge throughout Victoria.  Ice contributes to crime and not just crimes of dishonesty as users seek money to purchase this drug, but also to violent crime, that is violent drug fuelled crimes in homes,
the streets and on the roads.

The courts regularly confront crimes committed by offenders where the explanation put forward is that the offender is addicted to ice.  This drug is a corrosive force in our community.  The courts must play an important role in dealing with this social problem by imposing stern deterrent sentences to those entrepreneurial drug traffickers who seek to profit from the misery this addictive drug causes.'

18The Court of Appeal endorsed the further conclusions that I came to with respect to Condo, where I said at paragraph 24:

'Plainly, the primary sentencing purposes are denunciation and deterrence, especially to anyone who may be tempted by the lure of profits to peddle drugs.

What my sentence must make clear is that offending of this kind will be dealt with by the imposition of stern punishment involving years of imprisonment.'

19These are the sentencing purposes and conclusions that I must apply here to you, Mr Brizzi.  As I made clear to Mr Condo, and I state again, your personal circumstances, your plea of guilty, and your ongoing rehabilitation will not be overlooked, and they have not been.  Those matters must yield to the primary sentencing purposes of denunciation and deterrence, given the gravity of your crimes.

20As referred to at the outset, parity is important in respect of your level of involvement and your moral culpability.  In respect of those matters, your level of involvement and your moral culpability is at the same level as Condo. 
Your counsel did not argue otherwise.

21However, a different sentence can be warranted if one accused's personal circumstances establish that it is no longer appropriate or fair to impose the same sentence as was imposed on the other offender.

22As a broad introduction to your personal circumstances, there is a remarkable similarity between your personal circumstances and that of Mr Condo. 
Mr Condo is a few years younger than you, but both of you were in your early to mid, perhaps late 50s.  You are now 58.  You were raised in a hard-working, loving family in Red Cliffs.  You have two sisters.

23Your father became ill and died when you were eight or nine years old. 
This was a devastating loss to you.  Its effects still endure.  It was likewise devastating on your two sisters and your mother.  Your mother's grief was profound.  She courageously continued to operate the rural block, with you becoming involved and responsible at a very early age.

24As a consequence, your schooling was often interrupted.  You got to Year 11 before completely leaving school and working on the family block, a dry fruit operation.  The work was hard, the business' viability often uncertain.  Drought in the early 2000s tipped it over the edge.  By 2008, the business was in serious financial difficulties.  Your mother by that point was becoming frail, and you became her carer.

25Overall, your work history and your commitment to your family is very much to your credit.  Your hard physical work and your involvement in local football, also a matter that shows your good qualities, have left you with ongoing problems with your shoulder and your ankle.  You currently put up with those problems.

26Whilst on remand, you work as a billet, but are limited as to exercise.

27You have had moderate drug use in the past, but it is not an ongoing issue.

28The most important aspect of your life is your close and supportive relationship with your wife and two children.  You married about 27 years ago.  Your wife is hardworking and continues in her job in Mildura.

29Your offending and its publicity caused significant stress and embarrassment for her in her working environment.  However, despite what you have done, she stands by you.  This is very important as a foundation for your rehabilitation on release.

30Your two adult children are also very close and supportive.  They visit you in custody, notwithstanding the great distances.  They do so whenever they can, as does your wife.

31You are ashamed as to what you have put them all through.  You are anxious because your mother is now 85, in an aged care facility, with serious physical illness and some dementia.  You have done and will do prisoner harder because of your anxiety at her predicament.  You hope it will not happen, but you acknowledge that she may die before your release, and that causes prison to be that much harder.

32Your counsel argued your anxiety in prison was added to because you were, for so long, under the pressure of the allegation that you led the syndicate rather than be at the same level as Condo.  This aspect of the overall concept - that would be the proper description - of 'doing gaol harder' is in this case not one of much weight, but I do not ignore it.

33The psychological reports of Mr McKinnon and Mr Cummins outline your background.  It was not put that your understandable lower mood in prison operates to mitigate sentence.

34Your rehabilitation will be all about returning to your family on release and rebuilding on the solid foundations of family support.  I have read the helpful, heartfelt letters from your wife and son.  They speak of your good characteristics, the toll gaol has taken on all, including your sisters and mother, and how you have, in prison, reflected on what is really important to you now.

35I have read the testimonials of family friends and relatives, and from your then-parish priest, who all speak of your better qualities and the shock that you were involved in this serious offending.  You have good prospects of reform.

36However, the weight to be given to establishing conditions to facilitate your rehabilitation must yield to the other sentencing considerations I have articulated.

37In many, if not all the matters that I have mentioned in respect of your personal circumstances, they do not differ from much from those of Mr Condo.  You, like Mr Condo, had a very old but serious prior offence.  In the end, I do not place much weight at all on that matter.  It does not create a relevant difference between you and Condo one way or the other.

38Your plea of guilty was, as I said, later than Condo, but I have endeavoured to explain why that was so.  Your plea of guilty, when the prosecution case altered as to your role, was significant.  This was never really a matter that was going to go to trial.  Nonetheless, your plea of guilty does have considerable utilitarian benefit.  The difference in timing of the plea in this particular case between you and Mr Condo does not establish a basis for a different sentence to that which was imposed by the Court of Appeal on Condo.

39As has been made clear, the Court of Appeal decision in the sentencing of
Mr Condo established what must be done here.  Nonetheless, I have, as is my duty, exercised my sentencing discretion afresh with respect to you.

40But in the end, considering all the matters relating to the offence -
the seriousness of the offence, the quantities involved, the frequency of the sales and trades, and the impact upon our community of sales and trafficking in the drug - and taking into effect all the matters about you that I have heard, your personal circumstances, and then applying the principle of parity, the sentence for you must be identical to that of Condo.  There was, in the end, no real argument from your counsel to the contrary.

41Thus, on the charge of trafficking in a large commercial quantity, Charge 1, you are sentenced to nine years and nine months.

42On Charge 2, dealing with the proceeds of crime, being $165,000, you are sentenced to a term of imprisonment of 12 months.

43In respect to the matter of dealing in the proceeds of crime, the $4,530, you are sentenced to two months' imprisonment.

44And on the summary offence, you are sentenced to 14 days' imprisonment.

45I order that three months of the sentence imposed on Charge 2 be cumulative upon the sentence imposed on Charge 1.  All other sentences are concurrent.

46Thus, the total effective sentence is 10 years, and I fix a minimum non-parole period of seven years.

47You have been in custody for a very long time.  That period of time has been calculated or reckoned as 1070 days.  That figure or that amount of days having been reckoned, I now declare that 1070 days is part of the sentence that I have just imposed.  I will ensure that declaration is entered into the records of the court so that the prison authorities are left in no doubt that you have already done 1070 days of the sentence that I have just imposed.

48Had you pleaded not guilty to these matters and been found guilty of them,
I would have imposed a sentence of 11 years and six months with a minimum term of eight years and six months.

49There are a number of orders that I expect have to be made, Mr Saunders.  Those orders really flow from what was sought in the matter of Condo, but I did not make orders in respect of any drugs or any money or anything, because this trial had not resolved.

50MR SAUNDERS:  Yes, Your Honour. 

51HIS HONOUR:  So I need to attend to those matters.  I take it that we have on this matter not got a set of draft orders ‑ ‑ ‑ 

52MR SAUNDERS:  I believe we have.

53HIS HONOUR:  We have?  Very kind.  Thank you.  So what is sought is the disposal order. 

54MR SAUNDERS:  The disposal order for the items listed in the schedule.

55HIS HONOUR:  Yes, thank you. 

56MR SAUNDERS:  And then a forfeiture order under the act, the Confiscation Act, I presume, in respect of the money, Your Honour. 

57HIS HONOUR:  Thank you.  I am going to sign orders relating to the disposal of various items, mainly being the drugs and PVC piping and so on and so forth.  So I make an order for disposal - forfeiture of a phone and various amounts of cash.  What happened to the $165,000?  Have I ordered - is that to be forfeited, or is that on another ‑ ‑ ‑ 

58MR SAUNDERS:  I though it should be there.

59HIS HONOUR:  It would have.  It is not on this one.  It says an Apple phone, $1,280 cash, $3,250 cash.  So that is the $4,530.   And then there are various things on this about piping and tape and PVC.  I am not sure what has happened to the $165,000 in terms of an order.

60MR SAUNDERS:  We'll make enquiries in relation to that, Your Honour. 
We may need to rectify that order.

61HIS HONOUR:  All right, thank you.  Did I make orders also in respect of the non-publication of any of the sentence that I imposed on Mr Condo and
Mr Cassali until the matter of Brizzi had resolved?  I do not know whether the same applied in respect of the Court of Appeal.  That looked public to me, but ‑ ‑ ‑ 

62MR SAUNDERS:  It was. 

63HIS HONOUR:  ‑ ‑ ‑ how that operated, I am not exactly sure.  But I suppose any order that I did make, I need to ‑ ‑ ‑ 

64MR SAUNDERS:  Vacate.

65HIS HONOUR:  ‑ ‑ ‑ vacate.  I am just checking with my staff as to whether
I did, because we are getting - justifiably, concerns arise as to ongoing orders.  Was there any orders?  I do not think I did.  Maybe I said I was going to and then never did.  It is not a - it is a shadow that I do not have to worry about, by the look of it.

66MR SAUNDERS:  Indeed.

67HIS HONOUR:  Anyway, we get to the point where anyone who is interested can discover the sentences imposed on Mr Condo by looking at the Court of Appeal, and this sentence will be published as soon as possible and made available to those who utilise our portal system immediately.  Are there any other orders?

68MR SAUNDERS:  No, thank you, sir.

69HIS HONOUR:  Thank you.  I thank counsel for their considerable assistance in resolving this matter.  If there is nothing further, Mr Brizzi can be taken downstairs to continue his sentence.  Anything else?

70MR SAUNDERS:  No, sir.

71HIS HONOUR:  Thank you very much. 

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