Director of Public Prosecutions v Sergi
[2014] VCC 1301
•13 August 2014 (reasons revised on 4 February 2019 to remove restriction on publication)
| IN THE COUNTY COURT OF VICTORIA | Revised Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 11-00342
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PASQUALE SERGI |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 August 2014 | |
DATE OF SENTENCE: | 13 August 2014 (reasons revised on 4 February 2019 to remove restriction on publication) | |
CASE MAY BE CITED AS: | DPP v Sergi | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1301 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L. Crowley | CDPP |
| For the Accused | Mr J. Saunders | Theo Magazis & Associates |
HER HONOUR:
1 Pasquale Sergi, you are already serving a sentence of ten years imprisonment after being found guilty by a jury of attempting to obtain possession of a commercial quantity of MDMA. The man found by the sentencing judge, King J to be at the apex of the conspiracy to import the MDMA, its financier, and main organiser, was your cousin Pasquale Barbaro. He was sentenced to imprisonment for life for trafficking in a commercial quantity of MDMA.
2
Those sentences arose out of the interception of a shipment of just over
15 million MDMA tablets, concealed in over 3,000 cans labelled as tomatoes and imported, apparently from Italy, in late June 2007. The tablets weighed over 4.4 tonnes. The quantity of pure MDMA was over 1.4 tonnes. There was evidence at your original sentencing hearing that the conspirators - I use that word loosely to describe the various people who the evidence showed played some role in the importation, or then attempts, to take possession of the importation - had paid, or agreed to pay, $10 million for the tablets, and that in January 2012, the wholesale price of MDMA was $7 per tablet, with a street value, on average, of $8.30 per tablet. This arithmetic puts the value of the intercepted shipment in the vicinity, King J found, of $122 million. I was told on this plea that this was the largest quantity of drugs ever intercepted in Australia, and perhaps in the world. Her Honour’s finding that this was a crime at the highest level of criminality was upheld by the Court of Appeal when Barbaro appealed against his sentence.
3
King J accepted the prosecution characterisation of your role in that venture - the importation and attempt to obtain possession of that large amount of MDMA - as a foot soldier, willing and waiting to do what was asked of you, when it was asked. Although accepting you did not have a decision-making or decision influencing role, as Her Honour noted, and that you did not attend high level meetings at which others involved in the conspiracy were present, you were not excluded from conversations about what occurred at those meetings, or from other conversations when the major players were trying to determine the fate of the intercepted shipment and what to do. There was a considerable body of evidence showing your knowledge and awareness of that conspiracy. Although unable to make a finding about the reward you were to receive, Her Honour found that it was big enough to make you determined to become involved in, what she described as a “large and audacious conspiracy to possess tonnes of illegal drugs which you, and the
co-conspirators, knew or believed, would find their way onto the streets of this country and into the hands of our youth.”[1]
[1]DPP Commonwealth v Higgs, Agresta and Sergi [2012] VSC 133 at [36].
4 No arrests were made following the interception of that shipment, as the police continued surveillance at other investigations. Barbaro continued his activities, motivated, at least in part it would appear, by the need to make good the $10 million he owed to the European suppliers of that intercepted shipment. You, as the agreed facts on the plea before me indicate, remained willing and waiting to do what was asked of you, when it was asked.
5 You have now pleaded guilty to a rolled-up charge of trafficking in a commercial quantity of MDMA, in relation to the assistance that you provided Barbaro between May and August 2008. You have admitted providing assistance to Barbaro, and others, in relation to two separate parcels of MDMA. The first, 35,000 tablets, which you assisted in preparing and packaging for delivery from Melbourne to Perth, on 21 May 2008. The second, 12,600 tablets, which you transported from Griffith in New South Wales, to a safe house in Melbourne, where you unpacked them, and assisted in the counting and storing of them for the proposed further distribution and sale.
6 The agreed facts reveal that the first lot of tablets, the 35,000, were sold for $420,000; that is, $12.00 per tablet with a $20,000 discount for waste; that is, broken tablets. It is estimated the total of pure MDMA in that lot, was in excess of 3 kg. That is based on the analysis of other seized tablets, which weighed .3 gram each, and were 33 per cent pure.
7 The second parcel in which you were involved, the 12,600 tablets, was made up of tablets what had been re-pressed from broken ones, and which you knew Barbaro had taken steps to recover from customers to whom they were originally supplied. On the agreed facts, they were sold for $8.50 per tablet, and Barbaro was paid $107,500 for them. The total weight of pure MDMA in this lot was estimated on the same basis as was used for the first lot, to be in excess of 1 kg pure. This brings the total weight of pure MDMA in which you were directly involved in trafficking, to more than 4 kg. A commercial quantity is .5 kg. Thus the amount of pure MDMA in which you were directly involved in trafficking is at least eight times greater than the commercial quantity threshold.
8 Apart from the evidence showing your involvement in dealing specifically with these two large quantities of MDMA, the agreed facts relied on for the plea show, consistently with the evidence of your involvement in the earlier dealings in relation to the MDMA intercepted in the tomato can shipment, that you were aware of Barbaro’s continued engagement in large-scale trafficking in MDMA between January 2008 and the time of your arrest in August 2008. Barbaro asked you to help locate a place in Melbourne that he could use as his base, although the unit that he eventually rented was not arranged by you. The agreed facts also reveal that you were a regular visitor to that unit, and participated in a number of intercepted conversations with Barbaro and various others about the trafficking activities. You joined in discussions about the best way to count and record the cash proceeds, and the collection of broken pills for the purpose of re-pressing the fragments into saleable pills. You made phone calls and relayed messages at Barbaro’s request. You visited various of the people Barbaro supplied MDMA to, with him and other co-conspirators. You dug a hole to store drugs and money in, in the rear of the unit, and you were present at the unit with Barbaro, and others, on the day of arrest.
9 The records kept by Barbaro and a co-conspirator, Sharon Ropa, which were seized following the arrest of Barbaro, you and others, show that you were paid $10,000 sometime before the end of June 2008. It is not known whether you received any further payments for your assistance.
10 Again, your role can be characterised as a foot soldier, or, as Mr Crowley described it, underling. Consistently with the evidence in relation to the earlier matter, I am satisfied that you were aware of Barbaro’s activities generally, and demonstrated that you were prepared to assist, as and when requested. You were trusted. You were present when discussions took place about supply generally, about prices, about collection of money, and return of broken tablets for re-pressing. You were present when money was counted. You knew where money and drugs were stored and concealed, who the customers were, and how some of the supplies to customers were arranged. You may have been an underling, but you were an enthusiastic and willing participant in the enterprise, and you were well acquainted with some of its personnel and its activities. You had, in effect, the run of the office.
11 Again, as was the case when you were sentenced by King J, the major considerations in sentencing you for your role in this trafficking charge are general and personal deterrence.
12 Although the quantity trafficked by you is not at the stratospheric level of the intercepted importation, it is still significant in assessing the gravity of the offending, that it involves trafficking in more than eight times the threshold level for a commercial quantity.
13 I find that your role is similar to your role on the last occasion, that of trusted underling ready to do what was asked, whenever asked. Again, the only finding open as to your reason for involvement is financial gain. The only evidence of actual gain is the payment of $10,000. The evidence does not permit a finding that is the sole benefit you received, nor does it permit an affirmative finding that you actually received any other identifiable amount.
14 In my view, there are no reasons why the weight to be given to general deterrence should be reduced by reason of matters personal to you. You come to be sentenced as a 51 year old who, until his mid-forties, had no criminal history. You have lived and worked in Griffith all your life, where your parents, post-war immigrants from Calabria, had settled. You are married, and you and your wife have brought up your four children in Griffith. They are now young adults. Your work history was one of hard work on the land, and your efforts resulted, eventually, in farming your own small holding. You had been a loyal son and husband, and a good father to your children up until that time, and you had shown a real commitment to the care for your oldest son, who has a heart valve defect which has required careful monitoring, and countless trips to Melbourne for specialist consultations, and no doubt, considerable anxiety for his loving parents.
15 In the time leading up to your participation in the attempt to possess the intercepted importation, and thereafter, during the period of the offending for which I must sentence you, and, it would seem, up to the time that King J sentenced you, you had been struggling under a burden of debt which the farm income could not service. At the time that you were sentenced by King J, you feared that the family home and farm would be lost. That fear has not been realised. Your brother and son managed to renegotiate the loans, your brother to advance funds of his own, and they have taken on debt themselves to stave off foreclosure and enable the family home to be kept for the family.
16 I take into account in your favour, and as relevant to your prospects for rehabilitation, your absence of prior or subsequent criminal history, your productive life until your mid-forties, evidenced by that history of hard work, and your commitment to your family and the continued support of your family.
17 Mr Saunders relied, in this plea, on your personal history, as he had recounted by King J, and as set out by her in her reasons for sentence, and Her Honour’s findings in [68] to [70] and [72] to [75] of her reasons for sentence. I adopt the matters recited by Her Honour there, and her findings, and take them into account accordingly. The only reason I have left out reference to [71] of Her Honour's findings is because that related to the concerns you then held about the fate of the family home and farm, and Mr Saunders has provided me with that updated material, in respect to the saving of the property that I have already detailed.
18 It was put to me on the plea that you suffer from depression, which has worsened since King J has sentenced you, as a result of the effect of custody on that condition. I was told on the return today, and was offered to view for myself, but declined the opportunity, accepting what Mr Saunders had told me, that there are entries in the Justice Health Records confirming that you indicated when you were first received into custody that you suffered from depression, having been diagnosed sometime earlier, that you had been prescribed anti-depressants, and that that prescription of anti-depressants has continued. I am also told that you have recently, in the last month or so, received an increased dosage of anti-depressant medication as a result of your attending and requesting further assistance. I do not consider, on the material before me, that this enlivens either the fifth or sixth limb of Verdins.[2] I do take into account that imprisonment is, for most people including you, burdensome, that deprivation of liberty, having ample time on your hands to reflect on the poor choices which led to incarceration, absence from family, and ability to continue to live as you used to and participate in family life, is burdensome. That often, as it has for you, leads to sadness, lowered mood, and depression, reactive to those circumstances. I take that into account as part of the consequences of punishment and imprisonment for you, but I do not consider that it enlivens Verdins to reduce the sentence, otherwise appropriate, even further than these self-evident consequences do.
[2]R vVerdins; Buckley; Vo (2007) 16 VR 269.
19 You have pleaded guilty to this offence, and you are entitled to have your sentence reduced for the utilitarian benefits which flow from that. It was a late plea, but it did evidence an acknowledgement of the inevitable, and it saved the cost of a lengthy trial.
20
I do not consider the bare fact of the plea is, in this case, of itself evidence of remorse, and, in my view, there is no other evidence of remorse, as that term was defined by the Court of Appeal when considering the appeal of
Mr Barbaro and his co-conspirator Mr Zirilli.[3] And, I note King J made a similar finding in respect of absence of remorse in that sense, at [76] of her reasons for sentence.
[3]Barbaro; Zirilli [2012] VSCA 288.
21 You were arrested six years ago almost to the day. Many others were arrested at the same time. The number of people arrested, and the scale of Barbaro’s activities, meant that it has taken a long time for your matters to be finalised. Many trials, involving discrete parts of Barbaro's activities or discrete groups involved in parts of his activities and many sub-sets of accused, and many trials involving small sub-sets of co-accused, have been required. You, yourself, faced trial in respect of the intercepted shipment before King J and you were convicted following a 54 day trial in respect of that in May 2012, nearly five years after the event. You have been in custody since then. However, there has been considerable delay since the jury verdict in the final resolution of that matter and, until now, all other outstanding matters concerning you. It was not until 11 months after the jury verdict that you were sentenced for your role in that venture. The delay between verdict and sentence was not of your making. You elected to go for trial also in respect of the trafficking for which I now sentence you, and the matter resolved shortly before the trial was due to commence on 4 August this year.
22 Although you have been at Loddon Prison since King J’s sentence was imposed, or since shortly after that, I am told that you do not enjoy all of the benefits a sentenced prisoner as opposed to a remandee enjoys, because this matter has not been resolved. In particular, I am told your access to courses is limited. Although you are working, you have not been able to participate in the full suite of courses that are available to sentenced prisoners. Your interest in participating in courses has been evidenced by the certificates there were tendered to me this morning, showing the courses that you have undertaken since being at Loddon. Uncertainty about your fate from the time or charge and arrest, and the uncertainty about your ultimate fate even after you decided to plead guilty to this charge, uncertainty about what your earliest release date will be, and delay, generally, is a matter I take into account, and, I accept, has added to the burden of imprisonment since the time that you were first remanded in custody.
23 The experience of gaol to date, the appreciation of the time yet to serve before eligibility for parole, for someone who had no criminal record until his late forties, and no experience of gaol until then, in my view should have a significant effect on deterring you from engaging in like offending, or offending of any sort on release. That, together with your past good history and the family support you have, reduces the weight that, otherwise, I would have considered appropriate to give to specific deterrence.
24 Your circumstances are not directly comparable with the circumstances of any of your co-offenders whose circumstances were placed before me. So far as this charge of trafficking is concerned, I accept Mr Crowley’s submission that the cases of Bran[4], Molluso[5] and Varallo[6] are, although not directly comparable, ones which have more common features to yours than the cases of any other of the co-offenders in the chart that I was provided as part of the Crown sentencing submissions. Bran, Molluso and Varallo are all cases concerning trafficking in a commercial quantity of MDMA. The quantities are roughly similar for Bran, four times the commercial quantity, and for Molluso and Varallo, approximately 13 times. Molluso and Varallo were actual sellers. The sentences imposed on those three men provide some guidance as to where, on the scale of offending by reference to quantity, and perhaps to role, you sit. But it was common ground that they are not directly comparable, and your role was not that of a direct seller, like Molluso and Varallo, but, as I have said, as an underling. So, although these sentences are not directly comparable, they are useful in terms of proportionality, although not in terms of parity in its strict sense, in the strict sense in which that term is sometimes used. The judges who sentenced Bran, Molluso and Varallo, did not have to deal with the totality issue I must deal with, by reason of the fact that you are already serving that substantial sentence that King J imposed upon you.
[4]DPP v Bran (Unreported, County Court of Victoria, Judge Montgomery, 24 June 2013).
[5]DPP v Molluso (Unreported, County Court of Victoria, Judge Montgomery, 8 April 2013).
[6]DPP v Varallo (Unreported, County Court of Victoria, Judge Montgomery, 26 November 2013).
25
I accept that this offending should be regarded as part of a course of conduct which commenced with the attempted possession of the intercepted importation, and that the sentence for this offence must conform with the principle of totality. That means that I must ensure that the total sentence, for this, and having regard to the sentence for the earlier offence, is no more than is necessary to satisfy the various objectives of sentencing.[7] I accept
Mr Saunders’ submissions, generally, as to the effect of the principles in Azzopardi to which he referred to me, and his submission that a substantial degree of concurrency is warranted.
[7]Azzopardi v R (2011) VSCA 372 [61].
26 Having said that, this is serious offending, committed by a mature man well able to appreciate right from wrong, who was not susceptible to temptation by reasons of poverty, or vulnerable by reasons of dependence on a co-offender, or dependence on substances. This was offending motivated, again as King J found in the other case, purely by greed. You took a massive gamble for the financial reward that comes from dealing in illicit drugs. It was a gamble which failed, and a gamble for which you, and you alone, must bear responsibility and pay the consequences. Those who seek to profit from the drug trade must expect their behaviour to be rightly condemned and sternly punished when they operate at the scale that you did, and are caught. And, when I say those who seek to profit from the drug trade, that's not just those at the apex of the business or those who are the wholesale on-sellers, but also those who are the trusted operatives, underlings or foot soldiers.
27 Before I formally pronounce sentence, I will state my intention and then make sure that the orders I propose correctly reflect what I intend to do. I intend to impose a sentence of six years imprisonment on the charge of trafficking. I intend to make three years of that accumulative upon the sentence of King J, and I intend to require you to serve a further one year and six months, in addition to the time fixed by King J, before you are eligible for parole.
28 In order to give effect to that intention, I think this is the way to do it, that I declare that the sentence on this charge is to commence three years before the expiration of the sentence you are currently serving.
29 I must fix a new, single non-parole period in respect of all Commonwealth sentences, and it must commence today. You have served 470 days of the previously fixed non-parole period of six years and nine months, that is, you have served just short of one year and four months, which leaves five years and five months outstanding as at today. As I intend you to serve an additional one year and six months on top of the existing, unexpired non-parole period, that, I think, means a new, single non-parole period commencing today, of six years and 11 months.
30
As King J has already made a pre-sentence declaration in respect of the time spent in custody before she imposed her sentence, and by law, that has already triggered the requirement to take it into account, I say nothing about that, and nothing in today’s sentence affects that requirement to take that
pre-sentence declaration into account. There is no additional pre-sentence detention in respect of this offending.
31
Now, can I ask counsel whether the form in which I propose to make the orders is correct? That is, to impose a sentence of six years, and to direct that it is to commence three years before the expiration of this sentence that
Mr Sergi is currently serving.
32 COUNSEL: Yes, Your Honour, that's appropriate.
33 HER HONOUR: And, so far as the fixing of the new single non-parole period, on the arithmetic that I gave you, five years and five months outstanding as at today, taking into account the just under one year and four months done to date?
34 COUNSEL: Correct.
35 HER HONOUR: I add one year and six months of that, makes six years and 11 months from today.
36 MR SAUNDERS: Yes, Your Honour.
HER HONOUR: Mr Crowley's still on his calculator. The 470 days, that's 365 days plus 115. One hundred and fifteen is about 3.8 months on a 30 day month, so I rounded it up to one year four months.
37 MR CROWLEY: Yes Your Honour, that seems correct, Your Honour.
38 MR SAUNDERS: Yes Your Honour.
39 HER HONOUR: Could you please stand Mr Sergi.
40 On the charge of trafficking in a commercial quantity of MDMA, you are convicted and sentenced to be imprisoned for a period of six years. That sentence is to commence three years before the expiration of the sentence you are currently undergoing.
41
I fix a new, single non-parole period in respect of all Commonwealth sentences, which commences today, and is for a period of six years and
11 months. That means, Mr Sergi, that you do three years more head sentence in respect of this. So, although it is a six year sentence for this, it is three years cumulative upon the ten years that King J gave you. And I have added 18 months to your non-parole period. So, taking into account the fact that you have done one year, four months of your existing non-parole period, that leaves five years, five months of King J's non-parole period, and I have added 18 months onto that, which takes you to six years, 11 months altogether as the non-parole period. Do you understand that?
42 MR SERGI: Yes Your Honour.
43 HER HONOUR: And has that explanation satisfied the requirement to explain the sentence?
44 MR CROWELY: Yes it has, Your Honour.
45 MR SAUNDERS: Yes Your Honour.
46 HER HONOUR: There were no further orders were there?
47 MR SAUNDERS: No Your Honour.
48 MR CROWLEY: Nothing from me, Your Honour.
49 HER HONOUR: Mr Sergi, I have to remain on the bench whilst you're in the dock, but I will stay here while you speak, briefly, to the people who have been at court to support. You can speak to them but you are not allowed to have hand contact or physical contact with them. Gentlemen, you can go and speak to Mr Sergi.
50 The certificates of the courses that he's done in custody is Exhibit D5.
51 HER HONOUR: Mr Saunders, this was more for the people who cannot get down to the cells, than for you, because you can go downstairs and speak to him.
52 MR SAUNDERS: Thank you Your Honour. I apologise, Your Honour.
53 HER HONOUR: My reasons are available in draft form, if you want them now, or I should get the transcript and the revision within a couple of days.
54 COUNSEL: Thank you Your Honour.
55 HER HONOUR: And any objection to my providing those reasons in draft form to Mr Barry and Mr Kowalski who are in the Agresta matter?
56 COUNSEL: No Your Honour.
57 HER HONOUR: Thank you, remove Mr Sergi. Can I thank both counsel for their assistance and resolving the matter, and the assistance on the plea.
58 COUNSEL: Thank you Your Honour.
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