Director of Public Prosecutions v Margariti
[2019] VCC 1218
•27 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00919
Indictment No. C1711393
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FRANK ROCKY MARGARITI |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 to 20 July 2018 | |
DATE OF SENTENCE: | 27 June 2019 | |
CASE MAY BE CITED AS: | DPP v Margariti | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1218 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P J Pickering | Mr J Cain, Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr R H Lawrence | Stary Norton Halphen |
HIS HONOUR:
1 Frank Rocky Margariti, you have pleaded guilty to an indictment containing one charge of trafficking in a drug of dependence in not less a commercial quantity (charge 1) and one charge of negligently dealing with proceeds of crimes in the sum of $1,990 (charge 2).
2 The maximum penalty for trafficking in a drug of dependence in not less than a commercial quantity is 25 years’ imprisonment and for negligently dealing in proceeds of crime is 5 years’ imprisonment.
3 The prosecution filed a summary of prosecution opening dated 12 July 2018 which I have been told by your counsel I can treat as a statement of agreed facts.[1]
[1]Exhibit P1
The facts
4 In March 2017, police commenced ‘Operation Tropics’ which targeted the cannabis trafficking activities of Mejat Sazimanoski. This operation was concerned with his trafficking operations, his customers, distributors and suppliers. Police used tracking devices and surveillance to track you, your co‑offenders and others caught up in the operation, as you were all involved in the distribution and sale of cannabis to or from Sazimanoski.
5 Ha Huu Nguyen, Oanh Nguyen and Tuan Anh Le supplied cannabis to Sazimanoski in return for payment. Sazimanoski and his wife, Gezine Sazimanoska, distributed the cannabis to you and your co‑offenders, Stuart Thomas Wicks and John Francis Taouk. You on-sold the cannabis you purchased to other buyers.
6 Police telephone intercepts and surveillance disclose that your involvement in the operation and your offending took place between 13 April 2017 and 1 August 2017, a period of some 3½ months.
7 Your involvement in this criminal activity is set out in schedule C to the summary of prosecution opening. The trafficking by you, Wicks and Taouk, involved each of you receiving cannabis from Sazimanoski and Sazimanoska and then on-selling the cannabis to other buyers. Wicks, who was referred to as ‘the Mule’, made deliveries to you and others.
8 The prosecution alleges that the quantifiable amount of cannabis trafficked by you during this period was approximately 30.4 kilograms, some 5 kilograms over the commercial quantity threshold. The details of your activities are as follows.
9 On 16 May 2017, $55,000 in cash was dropped off by Wicks and Taouk to Sazimanoski. This cash came from you.
10 On 3 June 2017, Sazimanoski went to Bendigo and delivered an unknown quantity of cannabis to you.
11 On 16 June 2017, Wicks attended at Sazimanoski’s home and collected cannabis from you. He discussed a conversation he had with you on 14 June in which you told him that you were low, down to 10 pounds.
12 On 27 June 2017, Ha Nguyen delivered 30 pounds of cannabis to Sazimanoski which you later collected from him.
13 On 6 July 2017, following the arrest of a co‑offender named Robinson, Sazimanoski called you and told you, ‘We’ve gotta slow down’.
14 On 9 July 2017, you called Sazimanoski and told him that you were coming down. Sazimanoski told you to park away in the street and not in his driveway.
15 On 13 July 2017, Sazimanoski asked you if you were interested in purchasing ‘10 Euros’. This was a reference to ‘European cannabis’ which had been supplied to Sazimanoski two days before. You said that you were interested and agreed to meet Sazimanoski at midday on 14 July 2017.
16 On 14 July 2017, you attended at Sazimanoski’s premises in Lalor. You were then taken to a property in Wollert where the ‘10 Euros’ was provided to you.
17 On 21 July 2017, Sazimanoski told you that he was getting 30 to 35 pounds the following day and said that they are ‘European’ ones. You confirmed to Sazimanoski that you had 13 pounds of cannabis left.
18 On 22 July 2017, you attended at the Wollert property. Sazimanoska and a person known as ‘Sammi’ were present when Sazimanoska took a quantity of cannabis from her car and gave it to you.
19 On 23 July 2017, Sazimanoski told you that he had 28 people coming to his party (that is, that he was in possession of 28 pounds of cannabis). You arranged to come and see him.
20 On 25 July 2017, you attended at Sazimanoski’s premises in Lalor, whereupon Sazimanoski provided you with 28 pounds of cannabis.
21 On 26 July 2017, an unknown dealer driving a South Australian motor vehicle supplied 30 pounds of cannabis to Sazimanoski, who telephoned you and told you not to touch the cannabis he had given you the previous day as he now had better stuff from South Australia. You went to Sazimanoski’s premises and collected the 28 pounds. Later, Sazimanoski asked Taouk to get 26 pounds of cannabis from you.
22 On 28 July 2017, Taouk confirmed to Sazimanoski that he had collected the cannabis from you and still had 21 pounds in his possession.
23 These facts and circumstances give rise to charge 1 on the indictment.
24 You were arrested on 1 August 2017 at your home in Kangaroo Flat. Police executed a search warrant at that address and located 893.3 grams of cannabis in vacuum sealed bags and three separate plastic bags concealed in a paint tin, which together contained 255.8 grams of cannabis. Police also located a vacuum heat seal machine and vacuum seal bags in your kitchen. These facts form part of charge 1 on the indictment.
25 Police also located $1,550 in your wallet and a further $440 in cash was located on you during a search at the Bendigo police station. These amounts give rise to charge 2 on the indictment, negligently possessing proceeds of crime.
26 You were interviewed in a tape recorded record of interview and made partial admissions to trafficking in cannabis.
Offence seriousness
27 Trafficking in a commercial quantity of a drug of dependence is a serious criminal offence as indicated by the maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you have committed in charge 1.
28 Whilst the legislation is quantity-based and not harm-based, it is nonetheless relevant to observe that grave harm is inflicted on the community by offences involving the trafficking of cannabis by modern methods.[2] The harmful effects of cannabis and the seriousness of the offence have been emphasised numerous times in recent decisions in the Victorian Court of Appeal.[3]
[2] Nguyen v The Queen (2016) 311 FLR 289, 331 [142] (Redlich JA, Tate and Whelan JJA agreeing) (‘Nguyen’).
[3] See Nguyen 326 [123]
29 You played a significant enough role in a highly sophisticated criminal enterprise. You were an integral part in an extensive and successful business of trafficking in cannabis. Schedule C to the Crown opening demonstrates the extent of your involvement in this nefarious trade.
30 The fact that your role was that of distributor of pounds of cannabis you obtained from Sazimanoski does not of itself entitle you to any particular degree of leniency. ‘Couriers and intermediaries must expect substantial sentences, because without them the trade in narcotics would collapse.’[4] So too must distributors. Whatever descriptor is used to characterise your role must not obscure my assessment of what you actually did.[5]
[4] R v Muanchukingkan (1990) 52 A Crim R 354, 356 (Wood J). See also R v Le Cerf (1975) 13 SASR 237, 239 (Wells CJ); DPP (Cth) v De La Rosa (2010) 79 NSW LR 1, 62 [256] (McClellan CJ at CL)
[5] See R v Olbrich (1999) 199 CLR 270, 279 [19] (Gleeson CJ, Gaudron, Hayne and Callinan JJ)
31 The period charged covers approximately 3½ months. During this period you were actively involved in the ‘business of trafficking’ in cannabis in the Giretti[6] sense. It is agreed that I should sentence you on the basis that the total quantifiable amount of cannabis trafficked by you during this period is at least 30.4 kg, or just under 1¼ times the commercial quantity threshold.
[6] Giretti v The Queen (1986) 24 A Crim R 112.
32 While the sentencing regime for trafficking offences is quantity-based,[7] the amount you trafficked is not determinative of my assessment of the objective gravity of this offence. Nonetheless, the weight of drug you actually trafficked, falling as it does towards the lower end of the scale, remains a relevant factor in assessing the objective gravity of your offending conduct.
[7] Adams v The Queen (2008) 234 CLR 143.
33 During the period of your involvement in the business you were knowingly part of the conduit between the grower of the cannabis and the final buyer on the street. Your role can be characterised as being that of a willing participant at the wholesale level, albeit you were not the prime instigator or organiser of the business.
34 Nonetheless, the business required people to perform the role you willingly undertook. In this sense your played a critical part in the success of the operation overall. Your counsel accepted that you played an ‘important role in the distribution of cannabis acquired by Mr Sazimanoski’. I accept that you acted at the dictation of Sazimanoski in supplying cannabis in your possession to others in the syndicate.
35 Your counsel characterised your role as being a distributer of cannabis to people in the Bendigo area. You were supplied the cannabis by Sazimanoska on credit and you were required reimburse him once you had been paid by your customers. You typically on-sold the cannabis by the pound and you would mark-up what you obtained from Sazimanoski by $200 to $300. Your motive was financial gain together with obtaining the means to feed your own habit as a cannabis user.
36 I find that you fall at the lower end of the mid-range of seriousness of offences of this kind. It follows that the warning given by the Victorian Court of Appeal in Nguyen v The Queen[8] that in future sentencing courts should, by increments, increase the sentences for offences against s 72A of the Drugs, Poisons and Controlled Substances Act in the mid-range of seriousness, applies to you, albeit yours is an offence against s71AA of the Act. For the purposes of the application of the principles espoused in Nguyen, I consider it is artificial to draw any distinction between a mid-range commercial cultivator and offending committed by a mid-range commercial trafficker, who provides at least part of the conduit between the cultivator and the ultimate end user.
[8]Nguyen 296 [4 iv], (Redlich JA), 358–9 [245], 365–6 [272] (Whelan JA)
37 Accordingly, I sentence you on the basis that this is lower mid-range offending and that the principles laid down by the Court of Appeal in Nguyen v The Queen[9] apply in sentencing you.
[9](2016) 311 FLR 289
38 Whilst it appears that financial gain was a significant motivation for you, I accept there is no evidence of enrichment or a grandiose lifestyle in your case.
39 Overall, I assess your moral culpability in relation to this offending as being relatively high.
Personal circumstances
40 You are currently 56 years old. You were born and raised in Essendon. When you were three years old, you were taken to Italy by your mother. You then lived with a maternal aunt in France for three years and attended primary school there.
41 When you were aged six or seven, your mother collected you from your aunt and you returned to Melbourne to live, where you continued your primary education.
42 Your family moved from Essendon to Oak Park, where your elderly parents still reside. You attended Oak Park primary school and Essendon technical school.
43 In 1975, you commenced part-time employment at Myer. You left school in 1979 in Form 5 and commenced a boilermakers apprenticeship. At this stage in your life you commenced smoking cannabis.
44 You ceased living with your parents in 1984 when aged 20 or 21. You completed your apprenticeship with a refrigeration company in Brunswick.
45 You first married in 1991 and you have a son, Jack Margariti, who is now 27 years old, born to that relationship. You and his mother separated in 1993.
46 You had another significant relationship which lasted about five years.
47 You and your current partner, Anne Mangan, have been in a relationship for approximately 17 years and you have two children: Hannah, aged 15 and Callum, aged 10. You moved to Bendigo in 2003 and now live with your family in Kangaroo Flat.
48 You have a brother who is 4 years older than you, called Carlo. In December 2017 he was diagnosed with stage 4 lymphoma and is presently undergoing chemotherapy.
49 You are a qualified boiler maker with a good work history, working as a boiler maker both independently and for a number of employers. You have also worked in property maintenance and run your own business in collectibles and antiques. Since your release from custody in December 2017, you have worked renovating a property owned by friends and completed renovations at a home owned by your partner.
50 You are in generally good health, although you have been diagnosed with high blood pressure.
51 You have some relevant prior convictions arising from three court appearances between 21 August 1986 and 24 April 1990. These comprise offences involving drugs and dishonesty. You received fines and a suspended sentence of imprisonment. Importantly, you have had no convictions or court appearances for approximately 30 years and you have no matters outstanding.
Mitigating circumstances
52 You made significant admissions as to your own trafficking activities when interviewed by police, including that you purchased cannabis by the pound and on-sold it to others.
53 You pleaded guilty to the present charges not long after a contested committal hearing. At the committal hearing you pleaded guilty to trafficking simpliciter. While yours is not a guilty plea at the earliest reasonable opportunity, it is nonetheless a relatively early plea.
54 Your pleas have utilitarian benefit in saving the time and cost of a relatively lengthy trial. They also indicate an acceptance by you of responsibility for your offending conduct and your willingness to facilitate the course of justice.
55 However, whilst you are undoubtedly regretful for the situation in which you find yourself and the effect this has had, and will continue to have, on your family, there is insufficient evidence before to make a finding in your favour that you demonstrate true contrition and remorse beyond what is reflected in your pleas.[10]
[10] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
56 I accept that there has been some delay in finalising this matter, which is through no fault of yours. I take into account the fact that you have had these matters hanging over your head for some time and this has caused you some anxiety. I also take into account that you have remained a law-abiding citizen in the meantime.
57 I have had regard to a number of character references which were tendered on your behalf from your wife, your older brother and a family friend.[11] I have also had regard to the letter from Dr Umali, dated 30 May 2018, regarding your brother Carlo’s medical conditions.[12]
[11] Exhibit M2 (part).
[12]Exhibit M2 (part).
58 I accept that you have very good prospects of rehabilitation given the protective factors which are present in your case.
59 I accept that you have learnt a salutary lesson from your current experience with the criminal law and that you are unlikely to reoffend in the future. Accordingly, I need give little weight to specific deterrence or protection of the community in your case.
60 I also accept that separation from your immediate and extended family will make the burden of imprisonment heavier on you. I take these matters into account in your favour.
Application of sentencing principles
61 I have had regard to current sentencing practices in relation to the charge of trafficking in a commercial quantity of a drug of dependence in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym)[13] and the Victorian Court of Appeal decision in Nguyen v The Queen.[14] Neither the Crown nor your counsel put material before me concerning current sentencing practices in relation to this offence.
[13](2017) 91 ALJR 1063.
[14] (2016) 311 FLR 289 (‘Nguyen’).
62 It is difficult to gauge more than a very general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct which can constitute this offence and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.
63 Parity is a significant consideration in this case, as is the need for me to pass a sentence on you which is not unfairly disparate from the sentences I passed on others involved in Operation ‘Tropics’. I have had regard to these other sentences in determining what is an appropriate sentence your case.[15]
[15] See DPP v Le [2019] VCC 583; DPP v Sazimanoska [2019] VCC 617; DPP v Sazimanoski [2018] VCC 973; DPP v Taouk [2109] VCC 582; DPP v Wicks [2019] VCC 135.
64 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.
65 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
66 General deterrence is a very important sentencing consideration for the offence charged in charge 1.[16] The offence is prevalent in the community and, as the Court of Appeal has observed, the link between prevalence and general deterrence is self-evident.[17]
[16] Nguyen 330 [139]–[140].
[17] Nguyen 331 [141].
67 Whilst just punishment, general deterrence and denunciation must be given primary consideration in my instinctive synthesis, I am of the view that, in your case, specific deterrence and protection of the community need be given very little, if any, weight.
68 In my opinion, you have received a salutary lesson from the detection of your crimes and the consequent criminal proceedings. I accept the likelihood is that you have learned your lesson and you are unlikely to reoffend in the future. As I said earlier, I accept that you have very good prospects of rehabilitation.
69 Nonetheless, trafficking in a commercial quantity of cannabis is a serious crime and your moral culpability is relatively high. Consequently, as the Court of Appeal has observed on numerous occasions, immediate imprisonment should ordinarily be regarded as virtually unavoidable in cases of this type.[18] I am, therefore, of the view that a sentence of imprisonment with a non-parole period is the only sentence which will give appropriate weight to the purposes for which this sentence is imposed.[19]
[18] Nguyen 330 [140].
[19] Sentencing Act 1991 (Vic) s 5(4).
70 The $1990 in cash, the subject of charge 2, were no doubt proceeds from the business the subject of charge 1. Accordingly, there will be complete concurrency between the sentences I impose for these offences.
71 I consider it is appropriate in your case to impose a sentence which will allow for your release on parole earlier than might otherwise have been the case.
Stand up Mr Margariti
On the charge of trafficking in a commercial quantity of a drug of dependence, namely cannabis (charge 1), you will be convicted and sentenced to be imprisoned for 40 months.
On the charge of negligently dealing with proceeds of crime (charge 2), you will be convicted and sentenced to be imprisoned for 14 days.
I order that the sentence imposed on charge 2 be served concurrently with the sentence imposed on charge 1; making a total effective sentence of 40 months’ imprisonment.
I order that you serve a minimum of 20 months’ imprisonment before becoming eligible for parole.
I declare 135 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct that the fact that declaration was made and its details be noted in the records of the court.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your plea of guilty would have been a total effective sentence of 4½ years’ imprisonment with a non-parole period of 3 years’ imprisonment.
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