Director of Public Prosecutions v Madafferi
[2014] VCC 2203
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-11-00072
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FRANCESCO MADAFFERI |
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JUDGE: | HIS HONOUR JUDGE MASON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 October 2014 |
DATE OF SENTENCE: | 17 December 2014 |
CASE MAY BE CITED AS: | DPP v Madafferi |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2203 |
REASONS FOR SENTENCE
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Subject:Trial – sentencing
Catchwords: Trafficking a commercial quantity of a controlled drug, namely MDMA
Legislation Cited: Crimes Act 1914 (Cth), Sentencing Act 1991 (Vic)
Cases Cited:
Sentence: 10 years' imprisonment, non-parole period 7 years
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr R. Barry | Commonwealth Director of Public Prosecutions |
| For the Offender at hearing For the Offender at sentence | Mr L. Levy S.C. with Ms M. Casey Ms M. Casey | Valos Black & Associates |
HIS HONOUR:
1Francesco Madafferi, on 26 August 2014 after a trial lasting over six weeks you were found guilty by jury verdict of one charge of trafficking a commercial quantity of a controlled drug, namely MDMA, contrary to subsection 302.2(1) of the Commonwealth Criminal Code.
2The maximum penalty for this offence is imprisonment for life or 7,500 penalty units or both.
3You were born in January 1961, and were aged 47 at the time of offending. You are presently aged 53.
4The circumstances of the offending for which you are now to be sentenced may be briefly stated as follows.
5Between 12 February and 7 August 2008, you participated in the receipt and distribution of a commercial quantity of pure ecstasy in the form of tablets of MDMA.
6The prosecution case was that you were supplied with the drug through your connection with members of the Pasquale Barbaro syndicate. Members of that syndicate included Pasquale Barbaro, Zirilli, DiPietro, Sharon Ropa, Karam, Molluso, Varallo, Pasquale Sergi and others. It was part of the Crown case that Barbaro and others had managed the importations of the tablets. It was never part of the case against you that you were involved in any way in the importations. Your role was as a high-level recipient in the distribution chain.
7The evidence against you formed part of a wide circumstantial case. Recorded telephone calls and police surveillance of you and others were relied upon by the prosecution to establish your participation in the collection of drugs and the remittance of funds. It was a significant part of the case that the various distribution quantities and remitted funds were recorded as written entries in documents referred to by the Crown as the "Books of Account", recorded by Barbaro and Ropa.
8No drugs were ever seized in your possession. The scale of your participation is estimated from the entries in the Books of Account and the nature of tablet weight and pure MDMA content analysed from tablet seizures following the arrest of other distributors. These other seizures originated from the same prime source of a Barbaro syndicate importation and thus your product was highly likely to have been of the same or extremely similar weight and purity content.
9The Barbaro importation occurred in two separate phases: 240,000 tablets received by Barbaro between 12 February and 9 May 2008 in the first phase and 480,000 tablets between 9 May and 7 August 2008 in the second phase.
10So far as you were concerned, the Crown alleged that you received a total of 22,000 tablets in the first phase by receiving 2,000 tablets between 20 and 23 February 2008 and 20,000 tablets thereafter in four lots of 5,000 between 28 February and 8 May 2008. In the second phase, between 9 May and 7 August 2008 you received a total of 35,000 tablets in several stages:
·10,000 tablets on 9 May,
·10,000 on 15 May,
·5,000 on 18 June, and
·10,000 on 23 July 2008.
11As to the value of the drugs, the Crown alleged that the cost to you of 57,000 tablets was $473,500 relying on the Barbaro/Ropa Books of Account. It was alleged that you had been variously recorded as having made repayments totalling $366,000. At the time of arrest it was alleged that the gross amount outstanding was $107,500. I accept that the evidence established those facts beyond reasonable doubt.
12The precise weight and content of the drugs remains a contentious issue. No seizures relevant to the first phase were made. In relation to the second phase (35,000 tablets) the prosecution submitted that they were derived from a consignment that produced seizures of drugs elsewhere where the individual pill weight was at least 0.3 grams and the pure MDMA component was 33 percent. Recorded conversations involving Barbaro and others also suggested an average pill weight of approximately 0.3 grams.
13The difficulty in making a determinative finding on actual pill weight and purity is, however, complicated by some variances in the purities and the reliance on an “average”. One of the ten types of pills seized from the syndicate was at a low purity of 16.8%. The other nine types of pills seized were between 29% and 34.8%. The prosecution submission is that the inference can be drawn that the pills the subject of the first phase were of approximately the same purity as those in phase 2 and that you should be sentenced on the basis that you trafficked in 57,000 pills containing 5.643 kilograms of pure MDMA.
14A commercial quantity of the controlled drug MDMA is 0.5 of a kilogram. Accordingly the quantity of MDMA traffic is estimated to be approximately 11.2 times the commercial quantity threshold.
15In my view, while it is more probable than not on the evidence that an average weight and purity as submitted by the prosecution can be established, I am not satisfied that it can be accepted beyond reasonable doubt to that exactitude. I do not, however, regard the necessity of finding those precise figures as being the only factors determinative of the scale of your offending. Where they can be clearly established, it is helpful. However, the number of transactions and the amount and cost of the tablets trafficked alone, as recorded in the Barbaro Books of Account, provide a very clear picture of the scale. The regularity of your meetings and discussions with Barbaro and his associates as observed and recorded by the surveillance provides further evidence.
16On any view, this was an example of a wide-scale and very serious trafficking. Just taking 57,000 pills on the very lowest purity level of 16% pure amounts to 2.7 kilograms pure. I am satisfied beyond reasonable doubt that the scale of trafficking was well in excess of the commercial quantity threshold and can be regarded as a serious example of commercial trafficking.
17I now turn to your personal circumstances.
18As noted earlier, you are now aged 53 and you were aged 47 at the time of offending.
19You have a criminal record for offending in Italy between 1980 and 1985 when you were aged between 19 and 24. Your crimes comprised dishonesty, weapons and drug offences and you were variously fined and given gaol terms. You have no prior convictions in Australia.
20You were born in Calabria, Italy, the fifth child of eight. You had humble beginnings. Your father was a goat farmer and your mother worked on a farm. You had very little formal education and remained effectively illiterate. Three of your siblings migrated to Australia, married and have families. You have three sisters still living in Italy.
21You came to Australia at either 16 or 17 on a tourist visa. On that occasion you overstayed your visa but later left voluntarily. You returned in October 1989 and married Anna, who is still your wife, in 1990. You have four children. The youngest is still in school having just completed year 9.
22You have worked in the fruit business all your life. You began by initially working in your brother's fruit shop before purchasing your own shop 20 years ago. You also bought a farm about five or six years after arriving in Australia and that farm is allied to your business. You have worked long hours, seven days a week, starting at 4 am on Monday mornings with the shop open from 6 am to 9 pm. The evening family meals remained an important function after which you would often return to the shop.
23Between July 1996 and November 2005 you were engaged in a long struggle with Australian immigration authorities concerning your right to remain in Australia. A very helpful chronology was provided. Your application for a spousal visa was refused, and there were years of applications, rejections and appeals. During this period you were taken into custodial detention between 18 March 2001 and March 2002 before being released on home detention. You were thereafter subjected to claims by the Immigration Department for significant costs attending your home detention, and further court processes were taken by both you and the Department. After the High Court dismissed a special leave application in June 2003, the Department terminated your home detention and you were again taken into custody.
24Further applications and hearings continued concerning your application for a visa. In September 2003 it was determined that you were to be deported. Throughout this period your mental health deteriorated markedly. A review by Dr Lester Walton in September 2002 diagnosed Major Depressive Disorder. Involuntary hospitalisation was recommended. A review in the same month by Dr Patrick McGorry confirmed very severe major depressive disorder together with what appeared to be emerging psychotic features. You were considered acutely suicidal and admitted into an inpatient psychiatric unit under sedation. You were transferred to Werribee Mercy Hospital psychiatric unit as an involuntary patient on 17 September 2003 under 24-hour nursing due to suicide risk.
25In December 2003 Dr Paul Katz confirmed that you continued to suffer major depressive illness and a subsequent review by Dr Dean Stephenson in January 2004 indicated worsening depressive illness. In May 2004 you were transferred back into home detention, undergoing supervision and with fortnightly reviews.
26In August 2004 the United Nations Human Rights Committee determined that Australia was under an obligation to refrain from deporting you until your spousal visa application was examined with due consideration as to the rights of your children. In November 2005 you were eventually granted a spousal visa and entitled to remain in Australia.
27It is apparent from what is set out above that you have a long history of depressive illness related to your years in immigration detention. A report from Dr Danny Sullivan, consultant psychiatrist, was tendered at your plea in mitigation. Dr Sullivan was provided with and considered a raft of earlier reports from psychologists and consulting psychiatrists from 2003 to 2005 in addition to meeting with you and assessing your mental health following your custody in remand on these offences.
28In Dr Sullivan's opinion:
· you had developed serious depressive illness when previously held in immigration detention and despite treatment, your illness remained significant;
· from the earlier material it appears that your depression was in response to detention;
· in recent years while living in the community there is no indication that you have suffered depression and your general practitioner’s medical records do not note any psychiatric concerns;
· since being returned to custody you now present with significant depressive symptoms, you are agitated and distressed, you feel hopeless about the future and have ceased anti-depressant medication;
· you are currently assessed as presenting with the diagnosis of major depressive disorder, moderate severity, and that this is in response to detention; there was no information suggesting that you have had clinically significant mood disorders while not deprived of liberty and there is no indication of overt features of personality disorder;
· there is no indication that any mental disorder was associated with the offending.
29In summary, Dr Sullivan considers that you will experience incarceration as more onerous than would a person in normal health. You have a history of severe depression while in custody and your clinical state is likely to remain markedly impaired. Dr Sullivan recommends close psychiatric follow-up and psychological intervention in order to assist you with coping.
30Clinical notes taken while you have been in remand for this offending support distress and anxiety associated with a deteriorating mental state together with physical ailments such as chest and abdominal pain, headaches and “neck problems”. These later conditions are in turn consistent with the clinical record of your general practitioner for support counselling and management of pain for shoulder and back conditions. Your back pain is consistent with injury to your spine at C5-6 level. You have been prescribed a very wide range of medications for various physical conditions.
31I note that health notes made on your admission to custody in 2009 are also consistent with deteriorating mental health in custody and that you were very distressed, reported hearing voices and were prescribed anti-depressant medication.
32A large number of character references were tendered on your plea and are set out under tab 11 in the Plea Book, Exhibit “1”. It is clear that your many friends, family and associates hold you in high regard for your qualities of hard and conscientious work, your sense of social responsibility including charitable assistance to others, your devotion to your family and the generous emotional support you have provided. Those who know you well have commented on how the current offending is out of character.
33Both the prosecution and defence provided written outlines of submissions on sentencing and spoke extensively to these on the plea in mitigation. I have considered these carefully and re-read the transcript of the plea proceedings.
34In mitigation, I have taken into account the submissions of your counsel including the following:
· Your vulnerability to depressive illness while in custody. While it appears that you are not subject to clinical depression while not in custody, there is clear evidence that you have in the past struggled to adapt to the custodial environment. This has been evidenced in both the immigration detention and the period for which you have now been in remand on this charge. It is reactive, but I accept that it is genuine and serious. This in particular, but also your physical complaints, will mean that a given sentence will weigh more heavily upon you than upon a person in normal health. I accept that there is a serious risk of imprisonment having a significant adverse effect on your mental health.
· Your knowledge of the risk of deportation at the expiry of your sentence. I accept that in light of the very extensive process of deportation hearings which you have experienced in the past together with the nature of the current offending there is a serious risk that you will be deported at the expiration of your sentence. This knowledge is likely to weigh heavily on you. There is insufficient evidence, however, to establish it as a fact that you will be deported. There are many considerations, including the not insignificant fact that you have been married and raised a family in Australia, worked hard and continuously for many years, have contributed to your community and have not otherwise offended. I cannot therefore take into account any consequence of deportation flowing from the offence as additional penalty.
· Your time in custody not attributable to the offence. I consider it appropriate to take into account in a broad way and as part of your personal circumstances that on several occasions you have spent in time in custody where, after legal proceedings were concluded, you were released without penalty either by sentence or by deportation. I do not regard this as being appropriately regarded as what the law calls Renzella time, but as a period of hardship you have experienced simply as part of your background experiences. Despite this hardship, you managed to maintain your family life and return to your fruit business demonstrating commendable fortitude, and in my view this can be taken into account as a consideration of your prospects of rehabilitation.
· The delay in years from the time of offending to trial and sentence. While delay alone may not be a mitigating factor, over the period of six years from the date of this offending you have maintained your business and family life and enjoy the respect of many people who know you. You have not committed any other offences in this period. I take this matter as a factor relevant to your progress towards rehabilitation.
· The impact of your sentence on your family and dependants. While exceptional circumstances do not exist to permit the effect specifically on them to be taken into account, it is very clear from the heartfelt character references tendered from members of your family, including in-laws and your father-in-law, that you are part of a close, loving and supportive family. I have no doubt that their distress will be felt by you and add to your burden in prison.
· Your cooperation through the trial process. While you have exercised your right to plead not guilty and maintained a defence that required the prosecution to advance an extensive range of tedious recordings and transcript, this was consistent with and necessary to your defence that the conversations and observations were unrelated to activity concerning drugs. Where other matters could be admitted, they were admitted. Clearly the trial process could have been much more prolonged had you not so cooperated.
35The issue of parity with others involved in the Barbaro distribution, while not strictly co-accused, remains a consideration as well as an additional guide to current sentencing practice for this type of offending. I have read and considered the materials provided to me by both prosecution and the defence as an overview. I accept the qualification to this process as submitted by your counsel. While some guidance can be provided by these other cases, the individual circumstance of each case needs to be considered.
36In your case, several matters must be appreciated as forming an immediate distinction. You pleaded not guilty and ran to trial - this prohibits any discount that would otherwise attend a guilty plea and other expressions of remorse. Previous convictions in your case, although disturbing in their nature, were committed many years ago and therefore remain of some but of largely reduced relevance. Your role in this offending was confined as a customer of Barbaro, that is, you played no further part as did others in organisation, preparation, warehousing and the like. Your role was likely as a high-end wholesaler to others down the chain. Although the case of Pasquale Sergi has close parallels, all comparable sentences need to be considered. Sergi’s sentence followed a plea of guilty, the nominated s.6AAA declaration is an imperfect guide to what otherwise may have been the case and is rendered more imperfect as a guide because it also had to embrace totality considerations in the context of a pre-existing sentence of imprisonment.
37I remain guarded about your prospects of rehabilitation. Although they occurred many years ago, you have committed offences in the past involving drugs, possession of arms, receiving stolen goods and attempted extortion. No remorse can attach to your current offending and it was at a high level of offending. On the other hand, you are now a man of mature years, you have raised a family and have not committed other offences in Australia. I have endeavoured to balance these matters in the sentence that I have decided.
38I have carefully considered the sentencing considerations contained in s.16A and s.17A of the Crimes Act 1914 (Cth) and listened closely and given full consideration to the submissions of counsel for the Director of Public Prosecutions and to your counsel. Having considered all the available sentences, I am satisfied that a custodial sentence is appropriate in all the circumstances of this case because of the nature and seriousness of the offending.
39This was serious offending and of a nature that causes great harm to the community. Your motivation was simply for financial reward and it was committed over a significant period. Those who desire to engage in this pernicious trade must expect their behaviour to be rightly condemned. All aspects in mitigation must be considered. However the principles of just punishment and deterrence, both specific and general, remain significant.
40Mr Madafferi could you please now stand?
41On charge 1 of trafficking a commercial quantity of controlled drug, namely MDMA, contrary to subsection 302.2(1) of the Commonwealth Criminal Code, you are convicted and sentenced to ten years’ imprisonment.
42I order that you serve a minimum period of seven years' imprisonment before being eligible for parole.
43The effect of the sentence is that:
(a)it will entail a period of imprisonment of not less than the non-parole period, which is seven years, and if a parole order is made releasing you from prison on parole, it will entail a period of service in the community, called a parole period, to complete the service of the sentence, and
(b)if a parole order is made releasing you from prison, the order will be subject to conditions, and
(c)the parole order may be amended or revoked, and
(d)the consequences if you fail, without reasonable excuse, to fulfil those conditions are that your parole may be revoked and you may be required to serve the full term of your sentence.
44I declare that the sentence of imprisonment that I have imposed commences this day, and pursuant to s.16E of the Crimes Act 1914 (Cth), I declare that the period of 117 days not including today be reckoned as time already served under the sentence and I direct the fact of this declaration and its details be noted in the records of the court. Was there anything else from either counsel?
45MR BARRY: No, Your Honour.
46MS CASEY: I believe it should be 118 days, being the period from 22 August ‑ ‑ ‑
47HIS HONOUR: You may take a seat Mr Madafferi.
48MS CASEY: Sorry, Your Honour.
49HIS HONOUR: Not including today?
50MS CASEY: Not including today. So 22 August to 16 December, which is 117 plus 8 August 2008, which was the date of arrest. He was in custody for a period of time.
51HIS HONOUR: Do you agree with that, Mr ‑ ‑ ‑
52MS CASEY: Technically not, Your Honour. The date of arrest was less than one day under the alleged ‑ ‑ ‑
53HIS HONOUR: I remember this debate and it struck me that he was taken to custody on that day. He may not have completed the full day. I think it is appropriate that that day be included.
54MS CASEY: Certainly, Your Honour ‑ ‑ ‑
55HIS HONOUR: So that would be 118 days.
56MS CASEY: As Your Honour pleases.
57HIS HONOUR: So that will be amended to 118 days pre-sentence detention. Thank you, Mr Madafferi, you must now leave the court. Thank you.
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