Director of Public Prosecutions v Scardamaglia

[2023] VCC 243

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-02049

DIRECTOR OF PUBLIC PROSECUTIONS

v

PEPI SCARDAMAGLIA

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JUDGE:	O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2023
DATE OF SENTENCE:	24 February 2023
CASE MAY BE CITED AS:	DPP v Scardamaglia
MEDIUM NEUTRAL CITATION:	[2023] VCC 243

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Trafficking in methylamphetamines; 168 grams mixed sold to covert operative for a total of $27,100; Plea of guilty; Contested factual issue as to characterisation of role; Offender played knowing and important role in second transaction; Relevant previous offending; General and specific deterrence; Previous contraventions of community correction orders; Combined sentence of imprisonment and community correction order not open; Delay; Utilitarian benefit of plea; Some prospects for rehabilitation under lengthy period of supervised parole.

Legislation Cited:      Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Kada v The Queen [2017] VSCA 339; Luu v The Queen [2018] VSCA 92; Tran v The Queen [2018] VSCA 107

Sentence:                  Total effective sentence of 2 years and 6 months’ imprisonment, non-parole period of 15 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Y K Hardjadibrata	Office of Public Prosecutions
For the Accused	Ms M Walker	Melinda Walker Criminal Law Solicitors

HIS HONOUR:

Introduction

1Pepi Scardamaglia, on 3 June 2022 you pleaded guilty to one charge that between 23 November 2017 and 27 December 2017 you trafficked in methylamphetamines. The total mixed substance containing methylamphetamine trafficked was 168 g which was sold for a total of $27,100. At the relevant time the commercial quantity of a mixed substance containing methylamphetamine was 500 g.

2The police investigation revealed that you trafficked methylamphetamine with two co-accused, Jayson Muir and Michael Barbaro, in two separate sales to a police covert operative as follows:

·        On 23 November 2017, 56 g of 65% purity, sold for $9,500; and

·        On 27 December 2017, 112 g of 84% purity, sold for $17,600.

3During the course of the investigation, police identified the supplier of this methylamphetamine as Michael Barbaro. For the most part, during the course of the investigation, Jayson Muir would collect the drugs from Mr Barbaro’s home at 43 Chittenup Bend Sydenham, deliver it to covert operatives and collect the payment.

4On the two occasions the subject of this charge you drove Mr Muir to the location in Sydenham at which these transactions occurred.

5On the first occasion at 3.11pm on 23 November 2018 Mr Muir was observed by investigators leaving 43 Chittenup Bend Sydenham in a black Audi A6. You were driving that car.

6Four minutes later you parked the car in Boberrit Wynd Sydenham after which Muir got out of the vehicle and into the front seat of a covert operative’s car. He then produced the drug package and received in exchange $9,500 in cash. After counting the cash he got out of the car and returned to the passenger side of your car. The covert operative was later able to describe you as a male of large build, clean-shaven with short-cropped dark hair and a dark T-shirt. At 3.25pm you returned with Mr Muir to Mr Barbaro’s residence.

7On the second occasion, on 27 December 2017, Mr Muir attempted to call Mr Barbaro and you a number of times until he eventually spoke with you at 12.10pm. You had a coded conversation about supplying the covert operative with methylamphetamine. You said to Muir that you will visit and make the order. An hour or so later Mr Muir confirmed with the covert operative that he would be attending their usual spot with the “2IC” to make the transaction.

8At 2.15pm that afternoon Mr Muir was seen to attend 43 Chittenup Bend. At 2.30pm a black BMW registered to your then de facto partner was observed by surveillance officers at the location for the proposed sale in Boberrit Wynd Sydenham. Shortly afterwards Mr Muir got out of the BMW and got into the covert operative’s car. Mr Muir informed the covert operative that he (the covert operative) had received a $1,000 discount for purchasing four ounces of methylamphetamine. He was asked by the covert operative whether the “2IC” was in the BMW. Mr Muir confirmed that he was. The covert operative then asked for a further discount and said he wanted to speak to the “2IC”. Mr Muir agreed, and as the covert operative walked over to the BMW Mr Muir called out referring to the person in the car as “Pep”.

9The covert operative identified you as the “2IC”. You then explained to the covert operative that it was not possible to provide a further discount because to do so would involve methylamphetamine of a much lower purity.

10The prosecutor, Mr Hardjadibrata, tendered transcripts of conversations and intercepts recorded by the covert operative in which you tell him that the lower-priced drugs are “hammered” and that your mate (Mr Barbaro) “doesn’t do that”.

11You referred to the fact that there was a current female buyer from Geelong who purchased 10 oz of methylamphetamine per week for “48”. Indeed, investigators identified a female buyer from Geelong who dealt with Michael Barbaro who regularly purchased methylamphetamine for $4,800 per ounce from him.

12The covert operative attempted to negotiate a cheaper price at $4,300 per ounce. You disagreed and stated that $4,400 would be the best price possible. Ultimately, the transaction proceeded on that basis. Mr Muir received $17,600 in cash at the covert operative’s car in exchange 4 oz of methylamphetamine. The covert operative asked you for your phone number but you indicated that he should continue to communicate with Mr Muir.

13Once this second purchase had been completed surveillance officers observed you drop Mr Muir at the Watergardens Shopping Centre after which you attended at Bunnings and then returned to 43 Chittenup Bend.

14The covert operative had further contact with Mr Muir, who at one stage during January provided your number to him. The covert operative thereafter spoke briefly with you – apparently in an attempt to arrange further purchases – but you did not return his calls or messages.

15On 13 June 2018, police executed search warrants at your property and the properties of Michael Barbaro, Pasquale Barbaro, Jayson Muir and some other associates. You were arrested at your parents’ house in Keilor Downs and later interviewed.

16During that interview you admitted that you had “acted as security” a couple of times for Mr Muir in respect of a couple of drug buys, but you denied having anything to do with the drug transactions and maintained that you were just helping a mate out.

17In respect of the conversation about pricing and details regarding drugs with the covert operative at the time of the second sale on 27 December 2017, you explained that you were just saying what Mr Muir had told you to say in order to help him out. In relation to the lawfully intercepted calls between Mr Muir and yourself concerning future drug deals with the covert operative, you denied arranging with Mr Muir to sell drugs to him.

Maximum penalty

18Trafficking in a drug of dependence simpliciter contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 is punishable by a maximum penalty of 15 years’ imprisonment.

Procedural history

19There has been a very significant delay in resolving this case.

20You were charged on 13 June 2018 and after a contested committal you were committed for trial on 11 October 2019. At committal you pleaded not guilty.

21Once the matter came into this court there were a number of pre-trial applications which were largely initiated on behalf of Jayson Muir. Those applications concerned lengthy technical arguments as to the lawfulness of the controlled operation certificates. The main ruling in respect of that matter was the subject of an interlocutory appeal that was eventually abandoned. Although you joined in those applications, your role was passive.

22The trial involving you, Mr Barbaro and Mr Muir was ultimately set down for 4 July 2022. You agreed to plead guilty to these matters in late May 2022.

23At the time of drafting these sentencing reasons, Mr Muir’s matter is listed for plea in the Koori Court on 4 April 2023. His trafficking encompasses the period 15 September 2017—27 December 2017, and involves five separate sales of methylamphetamine to covert operatives totalling 293 grams.

24Michael Barbaro’s matters are listed for plea on 16 May 2023. He is to be dealt with in respect of a charge of trafficking in a commercial quantity of methylamphetamine between 15 September 2017 and 13 June 2018. It will be alleged in respect of Mr Barbaro that he was the supplier of methylamphetamine (in a quantity that does not exceed 1 kg) in a number of purchases including the covert operatives.

25Finally, you were remanded in custody on 13 June 2018 and granted bail on 4 December 2017. However you were not actually released until a subsequent bail variation on 8 January 2019.

26Due to what was said by your counsel to be a misunderstanding on your part, you did not attend your plea hearing which was scheduled for 5 December 2022. A warrant was issued which was executed on 16 December 2022. You have been in custody since that time.

A contested factual issue

27Exhibit A on the Plea was the Prosecution Opening Upon Plea of 1 August 2022. At paragraph [5] the following contention is put:

“The prosecution alleges that the accused was the “2IC” (or, 2^nd in charge) of those drug transactions after Barbaro. The prosecution alleges that the accused Scardamaglia was a trusted associate of co-accused Michael Barbaro until the relationship deteriorated. He had the authority to negotiate a better price for the methylamphetamine sold to the covert operative and gave directions to Muir in his dealings with the covert operatives.”

28Mr Hardjadibrata submitted that you knew of the quality and quantity of the drugs at each transaction.

29The defence took issue with the contention you were the “2IC”. They did so on the following basis:

·        there are no references to the “2IC” in the first transaction of 23 November 2017;

·        In the second transaction of 27 December 2017, all of the references to “2IC” occurred in your absence;

·        The allegation that you were the “2IC” was never put to you during the record of interview;

·        Barbaro was clearly the supplier. You, it was submitted, did not assume that role in his absence;

·        It was submitted that you did not negotiate with the covert operative; and

·        You effectively did not continue to communicate with the covert operative after the second transaction and “fobbed” him off.

30Given this, it was submitted that the adverse inference that you were acting as “2IC” could not be established beyond reasonable doubt and you should not be sentenced on that basis.

31My findings on this issue are as follows.

32There is an imprecision, if not confusion, associated with the term “2IC”. It is not clear if relates to second in charge for the purposes of these two transactions, or to being second in charge of Mr Barbaro’s wider drug trafficking operation.

33If the allegation is the latter, I am not satisfied that Mr Muir’s assertion that you were the “2IC” was the reality. Even if that representation was admissible in furtherance of your common purpose, the evidence seems to me to be insufficient to establish that you actually occupied such a position.

34On my reading of the limited material, it seems to me that to suggest you gave directions to Mr Muir is to somewhat overstate your role in respect of the second transaction. Moreover, although some of the evidence beyond November/December 2017 may contextualise your role, the purpose of that evidence is limited and cannot be used to punish you for offending with which you have not been charged.

35That said, your position in the record of interview with respect to these specific transactions, to the effect that you were simply there as a driver and to provide protection, is not borne out by the evidence that is available.

36You clearly played a knowing role, most certainly in respect of the second transaction. You knew the prices and quality of the drugs involved in that transaction and you did in fact reduce the price by $100 per ounce to $4,400. As the covert operative said in his recorded summary of the transaction with respect to the negotiation with you “… And then I offered a price of 4300 per bag, being per ounce of methylamphetamine. At this time he sort of thought about it for a quick second and then said, you know what, let’s make it 4 4 and will go from there”.[1]

[1] Operation Ezekiel UCO transcripts, disc 67 track 6.

37You were also sufficiently aware of Mr Barbaro’s activities such as to be able to accurately describe his dealings with the regular drug purchaser from Geelong.

38It follows that whilst you will not be sentenced on the basis that you were the “2IC” of Mr Barbaro’s enterprise, you will be sentenced on the basis that you played a knowing and important role in these transactions, particularly that of 27 December 2017.

Personal circumstances

39You were born in September 1965 and are now 57 years of age. It is worth noting that you were 52 when you committed these offences.

40Your parents immigrated to this country from Italy in the late 1950s. Your father trained as a fitter and turner, but in 1962 your parents purchased a milk bar in Moonee Ponds where you grew up. Your parents worked long hours for the 20 odd years they ran the business and you had a somewhat distant relationship with them. Your grandfather was your primary carer for many years.

41You have two younger brothers now aged 53 and 52. They are married, have children and both work in responsible positions in the IT industry. Neither of them has any previous criminal convictions.

42With respect to your schooling, you attended the local Catholic primary school and then, for the first two years of your secondary schooling, Moonee Ponds Central School. You then passed the entry exam to University High School where you completed what was then Forms 3 through to 6 (Year 12).

43In 1983 you commenced an Arts degree at Monash University and started working part-time in a TAB. You left university during your second year when you found employment as an assistant branch supervisor at a TAB. In 1988 you began operating a TAB from the Kealba Hotel in St Albans. In this context, you met someone who provided you with the opportunity to work in a real estate agency and obtain your sub-agents licence. You worked in that industry until 1995 when you purchased a video hire business in Macauley Road Kensington. You bought both the building and the business, which you ran for approximately five years to the end of 2000.

44Although you have relevant prior convictions, I note that you had not been in any trouble with the law until you were 29 years of age. In 1995 you were placed on a bond in respect of possessing and using amphetamines. I was told that at that stage you were a recreational drug user, however, by the age of 35 you started using methylamphetamine and very quickly became addicted to smoking it. In that context you sold your business and became unemployed.

45In March 2005 you were convicted of, amongst other things, trafficking in methylamphetamine and trafficking in ecstasy, for which you were placed on a 12-month Community-Based Order (CBO) with treatment conditions and ordered to perform 150 hours of community work.

46In June 2007 you were found to have breached that CBO and sentenced to nine months’ imprisonment which was suspended. In June 2015 you were placed on a Community Correction Order for 15 months for driving offences.

47In January 2016 you were convicted of dishonesty and firearm offences for which you were imprisoned for three months and in addition required to undertake another Community Correction Order. In March 2018 your Correction Orders were breached. In October 2018 you were convicted of, amongst other matters, possessing methylamphetamine, for which you were fined.

48After you were released from custody in respect of this matter on 8 January 2019, you entered a residential drug rehabilitation program known as the Maroondah Addictions Recovery Program. A letter from Michelle Spokes of 2 September 2019 confirms that you completed the program on 15 April 2019. It was very much to your credit that you were able to successfully complete what was an intensive voluntary program. After leaving the program you went to live with your parents and on a further eight occasions you attended at a men’s group which was run by the program’s alcohol and drug manager.

49It was not the case, however, that you remained offence-free. On 25 August 2021 you were before the Broadmeadows Magistrates’ Court in respect of six charges of driving whilst disqualified, theft, failing to answer bail and committing an indictable offence whilst on bail. You were placed on a Community Correction Order for a period of 18 months with conditions as to supervision, treatment and 200 hours of community work.

50You had been in quite a long-standing relationship which ended upon your arrest. You are now single.

51I have also taken into account the letter you wrote to the Court expressing how “embarrassed and regretful” you are for involving yourself in this offending.

Defence submissions

52On your behalf, Ms Walker submitted that this offending should be dealt with by way of a sentence of imprisonment not exceeding the time served in combination with a Community Correction Order.

53She acknowledged that this offending was serious, particularly having regard to the quantity of drugs, and noted that you have a previous conviction for trafficking, although that was 12 or so years ago.

54It was submitted that your plea of guilty was entered at an appropriate stage in the proceedings once more serious charges were withdrawn. It had significant utilitarian value, particularly because it was entered at the time when the court is having to manage many cases that have been disrupted or delayed by the pandemic. I note that this last period in custody has also been spent subject to the restrictive prison regime put in place to deal with the pandemic.

55It was also submitted that your plea of guilty was consistent with remorse.

56Reliance was placed on the significant delay that has attended your hearing. I referred to that delay in setting out the procedural history of this matter. It is now four years and seven months since you were charged with these offences.

57Your prospects of rehabilitation should be assessed as at least reasonable. Your criminal history is reflective of your drug addiction. However, having regard to your early work history and the rehabilitative work that you engaged in during 2019, it was submitted that you were well-placed to avoid recidivism.

Prosecutor submissions

58The prosecutor submitted that it may be inferred from the nature of the offences with which you were sentenced on 8 March 2005 that you were operating a drug trafficking business at the time of that offending as opposed to trafficking drugs to feed a personal habit. That submission was put on the basis that the other offences dealt with included dealing with property suspected of being the proceeds of crime, and possessing a controlled weapon and a number of firearm-related offences.

59It was argued that whilst it is appropriate to take into account your plea of guilty, the timing of that plea ought to be qualified by the fact that whilst you had offered to plead guilty to trafficking in a drug of dependence simpliciter at committal, you did so only on the basis that the matter would be dealt with summarily. The prosecution advised that they would accept the offer of that plea, but would oppose an application for summary jurisdiction. You did not accept that offer and cross-examined the covert operative at committal and pleaded not guilty. You thereafter joined in the submissions of the co-accused as to the illegality of the controlled operation certificates.

60Finally, it was submitted that whilst there had been a significant delay which must have weighed on you, there was subsequent offending and you did have a degree of control over the delay insofar as you elected to join Mr Muir’s pre-trial applications.

Consideration

61I was referred to three comparative authorities in Kada v The Queen,[2] Tran v The Queen[3] and Luu v The Queen.[4] The facts of those cases are not relevantly similar or instructively different to this case; they merely assist with respect to one of the many sentencing considerations to be synthesised, namely current sentencing practice.

[2] [2017] VSCA 339.

[3] [2018] VSCA 107.

[4] [2018] VSCA 92.

62As to the prosecutor’s submission concerning your previous conviction for trafficking, I infer that that matter was far less serious than the matter for which you will now be sentenced because it was dealt with in the Magistrates’ Court and the penalty imposed was relatively modest. I do not accept, on the available material, that I should infer that you were engaged in drug trafficking as an enterprise rather than trafficking to sustain personal use. On the contrary, I should think that the latter was more likely.

63I do accept that your plea was not made at the earliest opportunity but that is not to say, nor was it contended, that you should receive anything other than a substantial reduction in your sentence. The utilitarian value of the plea is very substantial, particularly as it was made in the context of the pandemic.

64Your counsel properly acknowledged the seriousness of this type of offending. I have concluded that you played a knowing and important role in the sale of 168 g of methylamphetamine. As you should appreciate yourself by now, the distribution of methylamphetamine causes incalculable harm to addicts, to users, to their families and to the community more broadly. Countless criminal offences are committed where people are affected by that drug, or seek to feed their addiction to it.

65It follows that one of the purposes of the sentence that must be imposed in your case is to roundly denounce this type of offending because it causes so much harm and misery. It is also important to signal to others who might consider disseminating this drug that if they do so they will be punished harshly. Moreover, your prior and subsequent convictions indicate a need to emphasise specific deterrence. I am therefore not persuaded that it would be either just or appropriate to enable your immediate release on a combined Community Correction Order.

66After the plea hearing and reflecting on the submissions put on your behalf, I sought an assessment from Corrections as to your suitability to undertake a further Community Correction Order. You were found to be unsuitable. Although you were assessed as being a low risk of reoffending, the report provided of 21 February 2023 notes that your engagement with the Community Correction Order imposed on 25 August 2021 has been “poor, he disengaged completely after accruing 15 unacceptable absences between 9 September 2021 and 29 March 2022”.

67You are now 57 years of age and, as your criminal history demonstrates, you have essentially wasted the last 20 or so years of your life addicted to methylamphetamine. I accept that you have expressed some remorse as the letter you wrote to the Court attests. I do see it as encouraging that you completed a residential drug rehabilitation program, but your subsequent offending attests to the fact that there remains much more rehabilitative work ahead of you. The sentence I will impose will attempt to facilitate that rehabilitation under supervision by providing an opportunity for parole at a relatively early opportunity.

68I see the delay that has attended your case as inordinate. I, frankly, think that it was not inappropriate for you to await the outcome of Mr Muir’s pre-trial applications which, in the result, were not entirely without merit. That meant however that you had to live with the uncertainty of what would happen to you for over more than four years and as the authorities make clear that kind of delay can mitigate substantially. It will do so in your case.

Sentence

69Taking all relevant matters into account, you will be sentenced as follows.

70On the charge of trafficking in a drug of dependence, namely methylamphetamine, you will be convicted and sentenced to a term of imprisonment of 2 years and 6 months.

71I will fix a non-parole period of 15 months

72I will declare pursuant to s 18 of the Sentencing Act 1991 that you have served 280 days by way of pre-sentence detention and I will cause that declaration to be noted in the records of the court.

73I will further declare pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, you would have been sentenced to a total effective sentence of 4 years imprisonment with a non-parole period of 2 years and 9 months.