Mammone (Pino) v The Queen

[2013] NSWCCA 325

Court of Criminal Appeal

New South Wales

Case Title:	Mammone (Pino) v R
Medium Neutral Citation:	[2013] NSWCCA 325
Hearing Date(s):	14 November 2013
Decision Date:	20 December 2013
Before:	Macfarlan JA at [1] Latham J at [2] R A Hulme J at [47]
Decision:	1.   Leave to appeal granted 2.   Allow the appeal in part 3.   Quash the sentences imposed by Knox SC DCJ and in lieu impose the following aggregate sentence - A non-parole period of six years and one month is imposed to date from 10 March 2010 expiring 9 April 2016 with a balance of term of three years expiring 9 April 2019.
Catchwords:	CRIMINAL LAW - application seeking leave to appeal sentence - plea of guilty - aggregate sentence - manufacture commercial quantity of prohibited drug (methylamphetamine) and knowingly take part in supply of not less than commercial quantity of prohibited drug - further offences of possess drug manufacturing apparatus, possess unregistered firearm, not keep firearm safely - whether proper discount for pleas of guilty - whether sentence for possess unregistered firearm manifestly excessive - utilitarian value of plea should be separately considered for each offence - sentence not plainly unjust - leave to appeal granted - appeal allowed in part - sentences quashed and sentences imposed in lieu
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Firearms Act 1966
Cases Cited:	Collier v R [2012] NSWCCA 213 Hristovkski v R [2010] NSWCCA 129 Lipchin v R [2013] NSWCCA 77 Mammone v R [2013] NSWCCA 95 R v Borkowski [2009] NSWCCA 102 ; 195 A Crim R 1 SGJ v R; Ku v R [2008] NSWCCA 258
Category:	Principal judgment
Parties:	Pino Mammone - (Applicant) Regina - (Crown Respondent)
Representation
- Counsel:	Counsel P Coady - (Applicant) S Herbert - (Crown Respondent)
- Solicitors:	Solicitors Legal Aid NSW - (Applicant) Solicitor for Public Prosecutions - (Crown Respondent)
File Number(s):	2010/61604
Decision Under Appeal
- Before:	BJ Knox SC DCJ
- Date of Decision:	16 March 2012
- Court File Number(s):	2010/61604

JUDGMENT

1. MACFARLAN JA : I agree with Latham J.

2. LATHAM J : The applicant, Pino Mammone, seeks leave to appeal against an aggregate sentence of 9 years and 8 months, with an aggregate non-parole period of 6 years and 5 months, imposed upon him following pleas of guilty to manufacture a commercial quantity of a prohibited drug (methylamphetamine), and knowingly take part in the supply of not less than a commercial quantity of methylamphetamine. Three further offences, namely, possessing drug manufacturing apparatus, possessing an unregistered firearm and not keep firearm safely were dealt with pursuant to s 166 of the Criminal Procedure Act 1986.

3. Each offence on indictment carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. The applicant received a sentence of 9 years and 8 months, including a non-parole period of 5 years and 9 months for the manufacture offence.

4. A fixed term of 4 years and 6 months was imposed contrary to law for the supply offence, and was partially accumulated on the previous sentence in order to extend the non-parole period by 6 months. Section 45(1) of the Crimes (Sentencing Procedure) Act 1999, which permits a court to decline to set a non-parole period, does not apply to a standard non-parole period offence: SGJ v R; Ku v R [2008] NSWCCA 258 at [76] - [78]. The applicant does not complain that that modest degree of accumulation was not warranted in the circumstances of the case.

5. Having regard to the debate on the question of whether a fixed term otherwise represents the non-parole period or the length of the head sentence (see Collier v R [2012] NSWCCA 213 per Hulme J), there is nothing in the remarks on sentence that explicitly indicates what the judge intended in that regard. Given that the supply offence carries a standard non-parole period of 10 years and that his Honour assessed the objective gravity of the supply offence in the mid range, it is reasonable to conclude that the fixed term represented the non-parole period. In the result, a re-sentencing on this basis ought make no difference to the aggregate non-parole period or aggregate sentence, assuming no other basis for intervention : Hristovkski v R [2010] NSWCCA 129 ; Lipchin v R [2013] NSWCCA 77.

6. The applicant received a fixed term of one month for each of the possess pill press and unregistered firearm offences. Those sentences were accumulated upon each other and upon the fixed term for the supply offence, thereby extending the aggregate non-parole period for the offences on indictment by two months, of which one month was attributable to the possess unregistered firearm offence. There was no penalty imposed for the offence of not keep firearm safely.

7. Although there was no issue taken with the structure of the sentences, the combined effect of s 168(3) of the Criminal Procedure Act 1986 and s 58(1) of the Crimes (Sentencing Procedure) Act 1999 prohibits the accumulation of the one month fixed terms on the "existing" sentences, because the result is that the fixed terms expire more than 5 years after the commencement of the sentence for the manufacture offence. Subject to the grounds of the appeal, it will be necessary to re-structure the sentences to remedy this defect.

8. The grounds of appeal raise only two issues, namely, whether the applicant received the proper discount for his pleas of guilty and whether the sentence for the offence of possess unregistered firearm is manifestly excessive.

The Offences

Manufacture Commercial Quantity of Methylamphetamine

1. The applicant's arrest followed a police investigation into the suspected manufacture of prohibited drugs at a rural property near the township of Marulan, north of Goulburn.

2. Surveillance by police and lawfully intercepted telephone calls demonstrated that the applicant attended the property on 29 October 2009 and thereafter on a number of occasions with his cousin Franco Mammone (see Mammone v R [2013] NSWCCA 95).

3. Police executed a search warrant on 30 November 2009 and noted the presence of a quantity of equipment consistent with a clandestine laboratory for the manufacture of methylamphetamine in a shed on the property. A covert audiovisual recording device was installed in the shed on 11 December 2009.

4. As a result of that device, a number of members of the extended Mammone family were recorded in connection with the manufacture of methylamphetamine. They also included one Bruno Romeo, Marcio Francisco and Kurt Minard.

5. On 26 February 2010 the applicant and Kurt Minard entered the shed at the property and carried in a number of boxes. They unpacked boxes which contained glassware and chemicals capable of being used in the manufacture of methyl amphetamine. They inspected the glassware, repacked the equipment into boxes and moved some items to an adjoining room before leaving.

6. On 28 February 2010 a number of telephone intercepts recorded conversations between the applicant, his cousin and another person about transporting someone referred to as the "labour" to the shed. The reference to the labour was a reference to Kurt Minard. Minard assisted the applicant's cousin in the manufacturing process on three occasions in March 2010.

7. On 3 March 2010 the police again entered the property and retrieved the audiovisual recordings up to that time. Forensic samples of precursors to the manufacture of methylamphetamine were obtained. Police observed evidence of the recent manufacture of methylamphetamine.

8. The next day, the applicant, his cousin and Romeo travelled to the property in order to commence the manufacture of methylamphetamine that afternoon. On 5 March 2010, Kurt Minard arrived at the property. All four men were recorded inside the shed whilst methylamphetamine was being manufactured. The applicant's cousin and Romeo left the property some hours before the process was completed.

9. On 8 March 2010, the applicant and Kurt Minard returned to the property and entered the shed. They set up manufacturing equipment and carried out the manufacture of a quantity of methylamphetamine.

10. On 10 March 2010 the police again entered the shed. Methylamphetamine and pseudoephedrine were detected in various containers. A quantity of equipment and a quantity of precursor chemicals were also found in the shed. A shipping container on the property contained sieves and vessels that appeared to have been used in the manufacture of methylamphetamine.

11. The applicant's home was searched on 10 March 2010. An unregistered .22 bolt action rifle with scope and a pill press were seized. These are the subject of the s 166 matters. The applicant was arrested and remained in custody.

12. At no time did police seize the product of the manufacturing process. The applicant's plea was entered on the basis that the quantity of methylamphetamine manufactured in the shed was not less than the commercial quantity, when account was taken of the three identified occasions when the manufacturing process was recorded. A quantity of 995 g was particularised in the indictment, being an estimate of the total amount of the drug manufactured over the relevant period.

Supply Commercial Quantity of Methylamphetamine

1. In late January 2010 a series of intercepted telephone calls between the applicant, his cousin and Vince Monteleone recorded a discussion about the potential supply of a quantity of methylamphetamine to Monteleone whose intention was to on-sell the drug to a third party at a profit.

2. On 9 February 2010, the applicant further discussed the price and the timing of the supply. Other discussions were recorded on 15 and 22 February 2010, the latter between the applicant's cousin and Monteleone.

3. During these calls, there was a reference to "260" which was taken as a reference to price. This figure forms the basis of the particular as to the quantity of the drug that was offered for supply.

Ground 1 : the Discount for the Plea of Guilty

1. The applicant pleaded guilty to four counts of knowingly take part in the manufacture of a commercial quantity of methyl amphetamine in the Local Court at Goulburn on 22 November 2010. It appears from the transcript of the proceedings in the Local Court on that day that the Crown's representative withdrew two charges relating to the supply of methyl amphetamine. The applicant waived committal proceedings and was committed for sentence to the District Court.

2. On 10 January 2011 in the Local Court at Goulburn, the applicant's representative foreshadowed an application to reverse his pleas. The magistrate indicated that he considered himself functus and that the application would have to proceed in the District Court.

3. The charges to which the applicant pleaded guilty were no billed on 2 March 2011 and replaced with three ex officio charges. They were knowingly take part in the manufacture of a large commercial quantity of methyl amphetamine, knowingly take part in the supply of a commercial quantity of methyl amphetamine and possession of a pill press.

4. On 3 March 2011 in the District Court at Goulburn, the Crown's representative informed the court that the matters would be proceeding to trial. The applicant's representative indicated that the applicant had entered pleas of guilty on 22 November 2010 "on the proviso that two additional sequences would be withdrawn", those two charges apparently relating to the proposed supply. The applicant's representative further indicated that there would be an application for a permanent stay on the basis of an abuse of process and that the application would not be able to proceed for another three to four weeks. On that basis, the stay application was listed at Sydney District Court on 18 April with an estimate of half a day.

5. It is apparent that the stay application did not proceed. On 21 October 2011 the applicant entered pleas of guilty to the charges that ultimately proceeded to sentence. The matter came before Knox SC DCJ for sentence on 10 February and 9 March 2012. The applicant's representative pressed the application of a 25% discount and informed the judge in the course of an exchange that "the Crown's position in relation to what charges they would lay changed a number of times in addition to which it was also put to us that all parties must plead otherwise the deals are off for the remainder." That was a reference to the applicant's co-offenders.

6. The Crown had earlier stated :-

   It is true that pleas were entered in November. .. Albeit at that point with a different legal practitioner, but thereafter there was a dispute in relation to at least two - if I can go back to the committal in November, there were four charges. In February there was a dispute in relation to two of those and the point that I make in relation to that, is that my friend's submission is accurate to the extent that it reflects the offender's position in relation to two counts. The other two counts were, at that point in time, under challenge. .. In fairness to the offender, perhaps there is a discount applicable really to, if you like, half the matters from the very beginning, at the outset, and the Crown's position changed as a result of negotiation - I won't go into that - and I put in my submission that the overall position should date to March, that being the point where the matters which had come up from committal were no billed by the Director, that being on 3 March, and it was shortly thereafter that a concession was made by the offender in relation to all of them.

7. During the judge's remarks on sentence, his Honour mistakenly referred to "a withdrawal of those pleas". I am of the view that this was a slip which did not reflect the true position. However, his Honour went on to say :-

   There were ongoing and extensive negotiations over the facts, which are not entirely consistent with a full admission. Nevertheless it is a proper matter for both counsel and solicitors to be involved in those negotiations, which has clearly happened here to the benefit of their clients. ...........................
   That has meant a significant demand on the DPP, the associated officer in charge and police officers who have clearly been involved in the ongoing negotiations. That is different from a situation where an offender at the first available opportunity admits fully to the matters and there are no other demands on the criminal justice system in all its respects.
   While that history would normally mean a significant reduction in the sentence, I am alive to the reality of the litigation practices in this State, in this jurisdiction in particular, and especially also in the context of plea negotiations where other co-offenders are involved. Further, I think that there are good policy reasons why a substantial discount should be maintained when it avoids a trial where the nature of clandestine surveillance operations always run a risk, however minimal, of compromising the confidentiality of those operations.

8. His Honour then referred to the utilitarian value of the pleas of guilty, dependent as they were upon the negotiations and the time which had elapsed to allow that to take place. His Honour then afforded a discount of 20% with respect to all charges against the applicant.

9. In R v Borkowski [2009] NSWCCA 102 ; 195 A Crim R 1 at [32] the relevant principles regarding the determination of a discount for a plea of guilty were encapsulated by Howie J (McClellan CJ at CL and Simpson J agreeing). In the course of that summary, it was noted that where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence. It is fundamental to the decision in Borkowski that the reason for the delay in the plea is irrelevant because the utilitarian value is reduced, even where there has been a plea bargain.

10. It follows that the judge was in error in failing to nominate a discount for the plea of guilty with respect to the manufacture offence separately from a discount for the plea of guilty to the supply offence. Disregarding the reasons for the late entry of the plea of guilty to the supply charge, the fact remains that the applicant pleaded guilty to the manufacture charge in November 2010, but did not plead guilty to the supply charge until October 2011, notwithstanding that the supply charge was in existence since March 2011.

11. In those circumstances, the applicant was entitled to a discount of 25% with respect to the manufacture charge and a lesser discount with respect to the supply charge. I would not regard the discount of 20% with respect to the supply charge as inappropriate.

12. The undiscounted sentence for the manufacture offence is 145 months (12 years and one month). Applying 25% to that sentence, a sentence of 109 months (9 years and one month) results. Applying the same ratio between the non-parole period and the head sentence, the non-parole period is 5 years and 5 months.

13. Given that it will be necessary to re-sentence the applicant, the sentence for the supply offence should be corrected so that a non-parole period equal to the fixed term is imposed.

14. I turn to ground 2.

Ground 2 : Manifest Excess

1. Possess an unregistered firearm contrary to s 36 of the Firearms Act 1966 carries a maximum penalty of 5 years' imprisonment. However, since the judge was dealing with this offence pursuant to a s 166 certificate, the effective maximum penalty was 2 years' imprisonment.

2. The applicant submitted to the judge that the unregistered .22 bolt action rifle with scope that was found at the applicant's home in Bringelly, which was a rural property, was kept for the eradication of vermin. The applicant effectively denied any connection between the firearm and the drug offences. In his remarks on sentence, his Honour referred to this submission and noted that there was no evidence supporting it.

3. The applicant relies upon Local Court sentencing statistics between January 2009 and December 2012. The applicant points out that of 399 cases, only 24 (6%) received a custodial sentence. However, one month is at the very bottom of that range of custodial penalties.

4. The statistics do not establish that the sentence of imprisonment for one month is plainly unjust. Whatever the reason for the applicant's possession of the firearm, the gravamen of the offence resides in the fact that it was unregistered, thus facilitating the transfer to and use of the firearm within the criminal milieu. The applicant has not demonstrated that it was not within his Honour's sentencing discretion to impose a custodial penalty.

5. There is no merit in ground 2.

Re-Sentencing

1. The re-sentencing exercise allows this Court to impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999. An aggregate sentence is the most appropriate way to reflect the increased discount for the plea of guilty to the manufacture offence in the overall sentence, as well as accommodating the imposition of the one month fixed terms.

2. The sentence for the manufacture offence is as I have indicated at [35]. The sentence for the supply offence is a non-parole period of 4 years and 6 months with a balance of term of 18 months.

3. I propose the following orders :-

   (1)Leave to appeal granted.

   (2)Allow the appeal in part.

   (3)Quash the sentences imposed by Knox SC DCJ and in lieu impose the following aggregate sentence :-

   (i)A non-parole period of 6 years and one month is imposed to date from 10 March 2010, expiring 9 April 2016, with a balance of term of 3 years, expiring 9 April 2019.

4. The applicant is eligible to be released to parole on 10 April 2016.

5. R A HULME J : I agree with Latham J