Mascolo v Police - [2004] SASC 259

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
MASCOLO v POLICE
Judgment of The Honourable Justice Perry (ex tempore)
25 August 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
TAKING PART IN SALE OF CANNABIS
The appellant appealed against a sentence of 6 months imprisonment imposed in the Magistrates Court following his plea of guilty to taking part in the sale of cannabis - evidence derived from phone intercepts proved that he arranged for the supply by another person of 3 pounds of cannabis, which he intended to pass on to another person who lived interstate, at a price of $3,300 per pound - he claimed that he was only a "conduit" through which the transaction was to be effected, and that he would not have received any remuneration - however, he told the source of supply to hold a further quantity to enable him to receive a further 10 pounds two days later - held that the sentencing magistrate did not err in describing the dealing as a "... transaction of a commercial nature ... committed against a background of possible further trading" - held further that the magistrate was justifed in refusing to suspend the sentence - appeal dismissed.
Controlled Substances Act 1984 s 32(1)(d), referred to.
R v Mangelsdorf (1995) 66 SASR 60; R v Gjoka (unreported) Jmt No S6211, Doyle CJ, 1 July 1997, considered.

MASCOLO v POLICE
[2004] SASC 259
Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals against the penalty imposed upon him in the Magistrate’s Court sitting at Adelaide, following his plea of guilty to the following charges:
(a)(Jointly with George Paul Giacoumis and Daniele Luigi Losapio) on 6 April 2003 at Maylands knowingly took part in the sale of cannabis, a prohibited substance, to another person contrary to s 32(1)(d) of the Controlled Substances Act 1984 (“the Act”); and
(b)On 6 April 2003 at Maylands knowingly produced cannabis, such production being 19 plants or less, namely, two plants, contrary to s 32(1)(a) of the Act.
On a third count, Losapio was separately charged that on the same day, that is, 6 April 2003, he produced five plants of cannabis.
The appellant and Giacoumis were sentenced on 23 June 2004. The charges as against Losapio, who also pleaded guilty, were on that date adjourned to another date for a disputed facts hearing. I have not been informed as to the outcome of that.
On the charge of taking part in the sale of cannabis, the sentencing magistrate imposed upon both the appellant and Giacoumis a sentence of six months imprisonment. He declined to suspend the sentence.
On the charge against the appellant of producing cannabis, the prosecution having accepted that the production was for his own use, the magistrate imposed a fine of $200.
In his notice of appeal the appellant appeals against the sentence of imprisonment. He advanced two grounds of appeal:
“The Learned Special Magistrate erred in imposing a custodial sentence or in the alternative erred in not suspending the sentence of imprisonment.”
The first ground of appeal was not pursued by Mr Floreani, counsel for the appellant. He argued only the second ground, namely, that the magistrate erred in not suspending the sentence of imprisonment.
Given the weight of cannabis involved, the maximum penalty for the charge of taking part in the sale of cannabis was a fine of $2,000 or two years imprisonment or both.
On the hearing of the appeal, the respondent tendered an affidavit of Andrew Williams, a solicitor employed by the Director of Public Prosecutions, who appeared on behalf of the complainant at the hearing in the court below.
Separately, the appellant tendered an affidavit of Mr McDonough, the solicitor who represented him in the Magistrate’s Court.
Mr Williams summarises in his affidavit the facts as they were put to the sentencing magistrate. Mr McDonough’s affidavit focuses upon the submissions which were put by him.
Factual Background
The offences were detected through police surveillance and interception of telephone calls between the defendants, which all took place on the day in question, that is, 6 April 2003.
The police alleged that in the course of the telephone calls, Giacoumis and the appellant arranged to sell three pounds of cannabis. In one of the telephone calls, Giacoumis told the appellant that he probably had 12 pounds available. The appellant told Giacoumis that he wanted six “now”, that is, immediately, and another ten pounds in two days’ time.
There was a discussion between the two of them as to price. The police alleged that the agreed price was $3,300 per pound. That was not disputed by the appellant.
The police case was that Mascolo was an intermediary who arranged the sale of the three pounds of cannabis to an interstate acquaintance known to him.
Following the phone calls, Losapio was seen to arrive outside the house occupied by Giacoumis at Klemzig. Shortly afterwards Giacoumis emerged carrying a blue Esky. He got into the passenger seat of Losapio’s car. When they drove off, the police followed.
They were seen to arrive at the appellant’s house at Maylands, into which they carried the Esky. Shortly afterwards, police officers entered the house. They found all three men inside the house, and located three bags of cannabis next to the blue Esky in a rear shed. The total weight of the cannabis was found to be 1,356 grams, or near enough to three pounds.
The police alleged that, at the time, the price of a pound of cannabis was in the range of $2,500 to $3,500 per pound. So that the price which the police alleged had been negotiated was within the police estimate of the sale price.
It was alleged against the appellant that his involvement in the transaction was part of an ongoing operation in which further transactions were planned.
It appears that the sentencing magistrate accepted this. He said during the course of his sentencing remarks:
“The transaction was of a commercial nature. It was planned and premeditated. It was committed against a background of possible further trading.”
It may or may not be of significance that a car with a Queensland number plate drew up at the house while the police were inside, from which a man emerged and entered the house.
A search of Giacoumis’s house at Klemzig effected shortly after his arrival at Maylands, indicated a strong smell of cannabis in the house. A suitcase containing cannabis fragments and a set of scales upon which cannabis residue was present, were located.
A search of Losapio’s premises at Dernancourt revealed the presence of five cannabis plants.
Mr McDonough, who, as I have said, represented the appellant in the Magistrates Court, submitted to the sentencing magistrate that the appellant was the “conduit” through which the sale was to be effected, and that the appellant’s role was simply to put the purchaser in contact with the seller.
He further submitted that the appellant was not going to receive any financial reward from the sale.
I turn to the appellant’s personal circumstances.
He is now aged 44 years. He was 42 at the time of the offending. He is single, but has fathered two children, neither of whom reside with him.
Although he has a long history of prior offending, the most recent offence, according to the antecedent report which was placed before the sentencing magistrate, was in 2000 when he was fined for driving an unregistered vehicle.
His record of offending dates back to 1975 when he was released on a bond without conviction on a charge of illegal use of a motor vehicle and larceny. Thereafter he was convicted on a variety of offences, including larceny, receiving, unlawful possession, common assault, indecent assault, driving offences and street offences.
Of significance for present purposes is a conviction recorded against him in 1991 in the Magistrates Court, for possessing cocaine and possessing equipment to administer the drug, upon which he was fined $55.
Subsequently, in 1992 in the Supreme Court, he pleaded guilty to a charge of possessing cocaine for sale.
On 30 September 1992, he was sentenced to imprisonment for 3 years and 6 months with a non-parole period of 2 years and 6 months. He failed to adhere to the conditions of his parole, with the result that he was subsequently ordered to serve the unexpired balance of the sentence.
In this case, in rejecting the request of counsel for the appellant that any sentence of imprisonment be suspended, the sentencing magistrate had regard to the decision in this Court of Mangelsdorf[1] and other later cases. He commented that having regard to the standard of sentencing referred to in those cases:
“… there is no doubt that imprisonment is appropriate for the offence of taking part in the sale of cannabis. The only real sentencing issue is whether good reason exists for suspending the sentence, either wholly or partially.”
[1] (1995) 66 SASR 60.
The sentencing magistrate then referred to the decision of Doyle CJ in Gjoka[2] to the effect that the gravity of some offences is such, that suspension will not be appropriate unless exceptional circumstances are present.
[2] (Unreported) Judgment No S6211, 1 July 1997.
That observation is apt to apply to cases involving commercial dealings with drugs.
The magistrate continued:
“I have considered the circumstances of the offence and the circumstances of each of you as offenders. I have borne in mind the legislative policy indicated by the penalties fixed by Parliament and the sentencing standards referred to in The Queen v Mangelsdorf and other cases. I have considered the impact of an immediate custodial sentence on each of you, and, in the case of Mr Giacoumis, on his dependant partner and infant children.
In the circumstances, I consider that the greatest weight should be given to the need to protect the community and the need to deter you and other people from engaging in commercial activities with respect to drugs. I am not persuaded that good reasons exist for suspending the sentence of imprisonment I am about to impose.”
Mr Floreani advanced several arguments in support of his submission that in taking that course, the sentencing magistrate erred.
In the first place, he focused attention upon the remarks of the sentencing magistrate which I have already quoted, when he referred to the fact that the offence was committed “against a background of possible further trading”. Mr Floreani took the court to the transcript of the various telephone intercepts, but I am afraid I cannot agree with the construction which he attempted to place on them. To my mind, there is simply no doubt at all that the appellant was asking Giacoumis to refrain from disposing elsewhere of the quantity of cannabis that he had, and indicated that in two days’ time he (that is, Mascolo) would be looking for a further quantity to be supplied.
The magistrate was entitled to describe this as constituting “a background of possible future trading”.
Mr Floreani further submitted that the magistrate erred in imposing the same penalty upon both Mr Giacoumis and Mr Mascolo, given that Mr Mascolo fell to be sentenced on the basis that he was a mere “conduit”, whereas Mr Giacoumis was the supplier.
In the first place, the position, for example, of couriers in drug transactions is such that the court has, generally speaking, treated them as seriously as suppliers.
In the second place, the word “conduit” is a neutral expression, the use of which should not be allowed to sanitise the true effect of the involvement of the appellant. He was an active participant in a transaction which would not have taken place, had he not made contact with Mr Giacoumis and arranged for the delivery of some cannabis on that day.
Mr Floreani further submitted that his client should have been sentenced only on the basis of a one-off transaction.
In a sense, he was only sentenced on the basis of a one-off transaction, namely, the transaction in question. But as I have already pointed out, the magistrate was perfectly entitled to deal with the appellant on the basis that this was committed, to use the magistrate’s words, “against a background of possible further trading”.
The final submission made by Mr Floreani was that the magistrate had failed to make a proper allowance for his client’s contrition.
The magistrate was informed by counsel that the appellant was contrite, and furthermore had pleaded guilty at the earliest opportunity. The magistrate made a deduction of 25 per cent on account of the plea of guilty.
It is true that he did not expressly refer to contrition. It seems to me, however, looking at the matter realistically, that the plea of guilty was nothing more than bowing to the inevitable, given the strength of the case, including the intercepts and the fact that the appellant was caught virtually red-handed.
So far as contrition is concerned, that is an expression more apt to describe a genuine expression of sympathy by a defendant, where there is a victim to the crime. Drug cases of this kind are victimless crimes. I am not sure that expressions of remorse or contrition can count for much. They are likely to be an expression of the fact that the defendant is sorry for himself, rather than for others.
In any event, it is plain on the authorities that in cases such as this, the predominant factor to be allowed for in sentencing is general deterrence.
In my view, the appellant has failed to identify any error on the part of the sentencing magistrate which would warrant interference by this Court. In particular, his refusal to suspend the sentence in question has not been shown to have been in error.
The appeal is dismissed.
[AFTER DISCUSSION RE COSTS]
There is no order as to the costs of the appeal.