Director of Public Prosecutions v Varallo
[2013] VCC 1868
•26 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.CR-11-00334
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PINO VARALLO |
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JUDGE: | HIS HONOUR JUDGE MONTGOMERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 26 November 2013 | |
CASE MAY BE CITED AS: | DPP v Varallo | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1868 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Bryant (CDPP) | |
| For the Accused | Mr M. Tovey with | Mr A. Grigor |
HIS HONOUR:
1 Pino Varallo, you have pleaded guilty to one charge of trafficking a commercial quantity of a controlled drug, namely MDMA, The facts of the case are set out in Exhibit 1, the prosecution summary. I will attach that exhibit to the file. The summary was not disputed by your counsel, Mr Tovey. I do not now intend to recite the facts. Any reader of these reasons can refer to Exhibit 1 to place the sentence in its factual context.
2 The charge is a between dates charge spanning a period of six months in 2008. Broadly speaking the summary sets out that you possessed, prepared, stored, transported and sold a commercial quantity of MDMA contained in ecstasy tablets during the alleged offence period. Your primary criminality involved your receipt and downstream trafficking of a net amount of $65,000 tablets which you obtained from Pasquale Barbaro. You were also engaged in some storage, preparation and transportation activities to assist the more expansive commercial MDMA trafficking enterprise of Mr Barbaro.
3 The prosecutor handed up written submissions in relation to sentence. He submitted that this was a serious example of this type of offending and that the quantity of tablets trafficked was substantial. He said there was a measure of aggravation because of your assistance to Mr Barbaro in the provision of a storage facility. He submitted that a custodial sentence was appropriate in all the circumstances. Mr Young submitted that general deterrence was a pre-eminent sentencing factor in this case.
4
In a discussion of the principles of parity, he referred to the sentence imposed on Frank Molluso. I sentenced Mr Molluso on 8 April 2013 on a charge of trafficking in a commercial quantity of a controlled drug, namely MDMA, to a term of imprisonment of eight years with a non parole period of six years.
Mr Young submitted that Mr Molluso was an offender most closely allied to your comparative position when considering sentencing. This comment was made in the context of my sentencing of a large number of offenders in this court in relation to Pasquale Barbaro's operations.
5
It was submitted that you are at a higher level of criminality than that of
Mr Molluso because of your additional criminality by way of your various assistances to Mr Barbaro in the scope of his operations. Mr Young submitted that the motive for your trafficking activities was the pursuit of profit. He said there was no certain evidence of the quantum or the profit upon the resale of the tablets purchased from Barbaro for the amount of $8.50 per tablet but that you were a good customer in the sense that substantial cash payments were quickly made. He submitted that was consistent with successful wholesale marketing activities downstream.
6 Mr Young submitted that your plea of guilty was entered relatively late in the proceedings but not at the last minute. He said that utilitarian factors flowed from your plea of guilty but questioned whether it demonstrated any real measure of contrite remorse.
7 Upon the consideration of your references tendered on your behalf, Mr Young said at p.46 of the transcript:
"They do resonate with a greater level of general remorse in terms of concern for persons other than himself and for persons other than one's family."
And then distinguished the comments of Justice King in Barbaro about remorse and I have sentenced taking that into account.
8 He submitted that in relation to specific deterrence it must have some impact, however there was nothing in the particular circumstances of your case which pointed to any additional need. He acknowledged that you have no other criminal offending and at the time you were conducting a lawful business enterprise concurrent with your criminal activities and that you have skills that could be harnessed in a rehabilitative process. He submitted that the impact of delay in this case is of marginal relevance in the context of negotiated pleas of guilty, not being entered until April 2013. You were arrested almost five years ago.
9 You served from the date of the plea, 22 days of pre-sentence detention, now 36 days. Mr Young submitted that, taking all the relevant matters into consideration, an appropriate sentencing range would be a head sentence of eight and a half years to ten and a half years with a non-parole period of six and a half years to eight and a half years.
10 An application was made for a pecuniary penalty order under s.134 of the Commonwealth Proceeds of Crime Act and the order was for the sum of $205,000. You consented to that order and I made it. Section 320 of the Proceeds of Crimes Act deals with the effect of a confiscation order being made in respect of sentencing. The section reads:
"A court passing sentence on a person in respect of the person's conviction of an indictable offence (a) may have regard to any cooperation by the person in resolving any action taken against the person under this Act and (d) must not have regard to any pecuniary penalty order or any literary proceeds order that relates to the offence."
11 Mr Young submitted that as the order related to the offending set out here, s.320 sub-s.(d) applies. However he submitted that s.320 sub-s.(a) is a reference to cooperation by the accused in resolving the action. It is common ground here that you, after negotiation, consented to the making of the order and in those circumstances, Mr Young submitted that I could have regard to that in that there was no contested court hearing.
12 On your behalf, Mr Tovey tendered a folio of references, some 20 or so in number. They are from various people who have known you in your personal and business life. In addition he called one of the referees, Rod Summers, to give character evidence. Mr Summers confirmed his reference and said that you were a dedicated family person who had done substantial community work, you were disgusted with your offending here and he was confident you would not re-offend. Mr Tovey submitted that the references established: (1) you are a hardworking person; (2) you are greatly respected in the building industry; (3) you have the support from your customers; (4) you have no other criminal history; (5) you are a generous and good hearted person who has been involved in substantial community work such as the Royal Children's Hospital Appeal and school activities and fundraising on behalf of injured family members; and (6) the references refer to how out of character this offending was as far as the referees were concerned and your expressions of remorse, shame, repentance and insight in respect of the offending.
13 Mr Tovey set out your personal circumstances. Your family came from Italy. You were born in Australia. Your mother was at home. Your father was a concreter and road construction supervisor. You have one sister. You lived in the Greensborough area with your family until you married at the age of 22. You attended Montmorency High to Year 11, previously being at Greensborough Primary School.
14 Your ambition was to be a mechanical engineer. However, as you had been working for your uncle as a tiler from the age of 18, you decided that was the course to follow. You did an apprenticeship for three years, then started your own business. You operated two firms, Straight Line Tiling and Graphic Tile Studio. Those businesses employed a substantial number of people and each had a turnover of approximately a million dollars a year.
15 You married your wife in 1991. The marriage has lasted 22 years. Mr Tovey told me you are a devoted couple. Your wife has assisted you in your business operations. While you are in custody, the intention is that a bistro you have bought will be run by her hopefully to carry the family finances through. You have three daughters aged 20, 18 and 16. Your youngest daughter, Mr Tovey told me, is a candidate for the Australian Women's Soccer Team.
16 In 2006, Mr Tovey told me, you in fact had no mortgages. You had purchased a property in Eltham for $850,000 in 2005. Whilst the property was being renovated, your family lived in a shed on the property for about three years. The renovations cost about $350,000. I was told the house now has a value of 1.5 million.
17 Mr Tovey told me your family are devastated by your involvement in this type of offending and you have expressed your remorse to them. In reference to how you became involved in this, you met Pat Barbaro through doing a large tiling job on his brother's house in 1994 near Griffith for about a month and a half. You subsequently did numerous work in the Griffith area for Barbaro and his friends.
18 In 2007 you did a job worth $100,000 for Barbaro and you were owed $66,820 at the end of it. In late 2007/2008 you went up to Griffith to talk to Barbaro about the outstanding money. He said he did not have it but you could recover the money if you trafficked in illicit pills. Initially you said no. However the friend you had with you, one Ricardo Malone, who had owned a tanning business and subsequently told you he had had some dealings in the illicit drug world, had further discussions with you about Barbaro's proposition.
19 At this time you had substantial financial problems. In 2005 you took on a gentleman named Monteroso as a salesman in the Graphic Tile Studio business. Unknown to you he had a gambling problem and was pilfering your stock and you were some $530,000 out of pocket. He repaid $500,000 of that but by that time you had lost a quarter of a million dollars in profits. He had been selling stock and keeping cash payments. The business was wound up owing $300,000 to trade creditors. You borrowed money to pay them out.
20
Your friend Malone wanted to get involved in the drug trade with Barbaro and finally you agreed. Barbaro never repaid the debt that he owed you.
Mr Tovey submitted that you succumbed to the temptation because your business was vulnerable at a time when the building trade was affected by the downturn in global finances. He said that you were affected by what Monteroso did and encouraged by your friend Malone to participate. This was put as an explanation and not as a justification or excuse for your offending.
21 At the present time your family have a mortgage of some $800,000 to Citibank. Your wife intends to meet the interest payments on that from the success of the restaurant. The Straight Line Tiling business has been taken over and you have no interest in it. Mr Tovey, although acknowledging that your criminality was, as outlined by Mr Young, higher than that of Mr Molluso, but submitted there are substantial differences between you and Molluso when considering parity and after a consideration of those differences, I should sentence you to a lesser sentence than that received by Molluso. He pointed to the payment of the proceeds of crime sum. No such application was made in Molluso's case, thus he suffered no financial penalty. He said that Molluso had a different work history and that your personal history of contributions to your family and community were markedly different to Molluso's.
22 The circumstances of how you became involved, he submitted, through your financial vulnerability were also a point of distinction. He submitted you had zero chance of re-offending. You had shown incredible expressions of remorse and you had concerns about whilst in custody how your family would cope with the business pressure and concerns about the illness of your father. In summary, Mr Tovey relied on your plea of guilty, the delay in the case, the fact that you have no other criminal convictions, your personal circumstances, including how you became involved in this offending, your good character as established by the references and your expressed remorse.
23 He sought to distinguish you from the Molluso case and submitted that you should be treated in a more lenient fashion. He submitted that a clear distinction between the two of you was the payment under the proceeds of crime order.
Sentencing considerations
24 I have taken into account all the submissions made, the witnesses called and exhibits tendered, including any not specifically referred to in these reasons, considered and taken into account the matters set out in s.16A sub-s.(2) of the Commonwealth Crimes Act.
25 I have considered s.17A of the same Act. Having considered all the available sentences, I am satisfied that a custodial sentence is appropriate in the circumstances of this because of the seriousness of the offending.
26 These reasons for sentence can be taken to be entered as the records of the court.
27 General deterrence is an important sentencing consideration in cases of this type. Drug taking is an enormous problem in the community and the users rely on people being prepared to sell to them. You entered into your association with Mr Barbaro for a profit.
28 By the imposition of substantial prison sentences, the court's hope is that the future prospective drug traffickers will consider their position and the consequences of such offending. Specific deterrence has a role to play here but a lesser one than it would otherwise have because of your good character and your substantial contribution to the community and I am satisfied that you are unlikely to re-offend.
29 You were a businessman in difficult financial circumstances who succumbed to the temptation of being involved in the drug trafficking world as a way to make a quick and easy profit to rescue your finances. Such an attitude is in marked contrast to your other life, that is hardworking, devotion to your family, and assistance to the community through your various activities. Indeed, it is in contrast and contradictory to you being a law abiding citizen and then becoming involved in an activity that had the potential to cause misery to many young people in the community through their use of illicit drugs. I am satisfied through reading the references that you now understand this and I accept your remorse in the terms as stated by Mr Young, the prosecutor.
30 Your plea of guilty, because you have saved the court the time and expense of a long drug trial, is of significant utilitarian effect and additionally it is an acceptance of responsibility by you. However, in the circumstances, the entry of the plea of guilty was made at a late stage, although not at the door of the court. You receive a substantial discount for that plea of guilty.
31 I have taken into account your cooperation in respect of the proceeds of crime order to the extent that the order was by consent after negotiation between the parties. I consider that under the legislation, that is the only aspect under which I can take that order into account. I have also taken into account the delay in the matter.
32 Considering the issue of parity of sentence with Mr Molluso, I note he also had no other criminal history, he was a younger person than you, being aged 26/27. In that case it was accepted by both prosecution and defence at the time of his plea that he became involved in the offending because of his susceptibility to older more powerful people, in particular one Tony De Pietro. Character witnesses were called on his behalf and confirmed his family background. He had left school in his mid teens to support his mother and sisters upon the early death of his father and worked hard in various businesses and established his own kitchen business. Although not as successful in business as you, he did not have the motive you had of trying to rescue your failing business finances. There was no evidence in Molluso's case of an extravagant lifestyle or unexpected spending.
33 He pleaded guilty at a late stage. I did not accept that as an expression of remorse. I also accepted that specific deterrence had a lesser role in his case than it otherwise would because of his good record, the support of his family and friends and the matters referred to in the psychological report. I was satisfied he had good prospects of rehabilitation.
34 Apart from the gravity of the offending between yourself and Mr Molluso, I find nothing in the circumstances of Molluso to generally distinguish his background from yours when considering the issue of parity. Your offending was of a higher level than his. Balanced against that is the allowance I have made for you under s.320A of the Proceeds of Crime Act.
35 Weighing up all the different sentencing considerations and doing the best I can, I impose the following sentence. I sentence you to a term of imprisonment of eight and a half years with a non-parole period of six and a half years, the starting date being today, 26/11/2013. I declare that the time you have spent in custody of 36 days be reckoned as a term of imprisonment served under the sentence I have just imposed.
36 I state pursuant to s.6AAA of the Sentencing Act, that but for your plea of guilty, I would have sentenced you to a term of imprisonment of 12 years with a non-parole period of ten years. Are there any other orders I need to make. No. Thank you. Could you take Mr Varallo out, thank you.
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