R v Bianco No. Scciv-02-250

R v BIANCO
[2002] SASC 442
Court of Criminal Appeal: Doyle CJ Lander and Bleby JJ (Ex tempore)

DOYLE, CJ: The Court will give its decision now and I invite Bleby J to give his reasons first. I agree with the order proposed by Bleby J and the reasons that he gives. Accordingly, the order of the court is that the appeal be dismissed.
LANDER J: I also agree
BLEBY J: This is an appeal against a sentence imposed by the District Court in respect of two counts of taking part in the sale of cannabis, contrary to s 32(1)(d) of the Controlled Substances Act 1984. In each count the amount of cannabis allegedly involved in the sale was in excess of two kilograms. Both offences were alleged to have occurred within a period of a week. The appellant pleaded guilty to both counts as particularized and, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, the sentencing Judge imposed a single penalty of imprisonment for a period of three years and three months, with a non-parole period of two years.
The appellant sought leave to appeal against the sentence on a number of grounds. On 30 October 2002, a Judge of this Court granted leave to appeal solely on the ground that the sentencing judge proceeded on an erroneous basis in determining that the offending involved 12 pounds of cannabis rather than some lesser quantity and that, in those circumstances, the sentence imposed was manifestly excessive.
The appellant is a 45 year old man. He has been married approximately 24 years, and has two adult children, aged approximately 18 and 21 years. The appellant resides in Melbourne and was a self-employed sub-contractor in housing construction.
The offences in question arose out of the appellant’s relationship with a man named Rizzo. Mr Rizzo resided in Adelaide and was responsible for growing, packaging and setting a price for good quality cannabis. The appellant and Mr Rizzo were acquainted with each other through a mutual interest in car club racing.
According to submissions made on behalf of the appellant before the sentencing Judge, Mr Rizzo approached the appellant unannounced at his home in Melbourne, in about November 2000. Mr Rizzo allegedly told the appellant that he could supply him with good quality cannabis at a good price due to the appellant’s long-standing relationship with the car club racing scene.
The sentencing Judge was told that the appellant was a user of cannabis for the purposes of relieving the pain of a neck injury suffered in the 1980’s, and that he accepted Mr Rizzo’s offer in the interest of reducing his costs of acquiring cannabis. The appellant was said to be careful to keep his use of cannabis hidden from his children, and would only smoke in private.
According to the submission the appellant had other friends and acquaintances who also used cannabis, and he agreed to become the conduit by which Mr Rizzo could supply both himself and those friends and acquaintances with cheaper cannabis.
On the basis of submissions put before the sentencing Judge, it was unclear what the appellant was to receive out of the alleged arrangement. It was submitted that the appellant’s reward for involvement would be a bit of a commission, normally being a commission in kind, and that although he was not on the payroll, he would receive some not insubstantial amounts of cannabis for his own use.
The Court was told that Mr Rizzo supplied the cannabis which the appellant told him that he wanted. When the appellant gave cannabis to close friends, he would then put money into Mr Rizzo’s bank account. In some cases, there were adjustments to these amounts that related to payments for motor vehicles.
Apart from some character evidence, no evidence was called by the appellant. The sentencing Judge was left with counsel’s submissions based on the appellant’s instructions, and transcripts of a great many telephone intercepts on Mr Rizzo’s telephone. The submissions of the appellant’s counsel were not consistent with inferences which the prosecution invited the Judge to draw from the evidence of the telephone conversations, particularly those involving the appellant, and from other material found in the appellant’s house.
In relation to the first count, no cannabis was intercepted. It was open to infer from the telephone conversations that the arrangement between Mr Rizzo and the appellant was for the sale of six pounds of cannabis. A man named Mr Branch was to transport the cannabis from Adelaide to Melbourne.
The sentencing Judge proceeded on the basis that the amount of cannabis involved in this first count was six pounds or 2.72 kilograms. However, there was material before the sentencing Judge to suggest that while a delivery of six pounds was planned, the delivery may have failed, or that only three pounds may have been delivered. In particular, the transcript of a telephone call between Mr Rizzo and Mr Branch recorded on 3 February 2001 indicated that although the appellant was expecting six pounds of cannabis, Mr Rizzo was then only willing to supply three pounds.
The amount involved was important because if it was below two kilograms, the maximum penalty was a fine of $2,000 or imprisonment for two years or both. If the amount was above two kilograms, the maximum, penalty was a fine of $50,000 or imprisonment for 10 years or both.
In relation to the second count, the sentencing Judge also proceeded on the basis that the quantity of cannabis involved was six pounds, based on the evidence of telephone calls. The cannabis the subject of this count was intercepted in transit to Melbourne and was found to weigh 2.45 kilograms or about 5.4 pounds.
The cannabis the subject of this second count was picked up in Adelaide by men named Griffiths and Stockdale. The appellant claimed in the District Court that he had by this time had enough of his relationship with Mr Rizzo, owing to the fact that he knew that the activities taking place were illegal. The appellant therefore claimed to have arranged for Griffiths and Stockdale to come to Adelaide themselves and pick up a supply of cannabis, rather than the appellant acting as the conduit by which the cannabis would be distributed in Victoria.
Proceeding on the basis that each offence involved six pounds of cannabis, and having material before him as to the value of cannabis at the time of the offending, the sentencing Judge then estimated the total value of 12 pounds of cannabis as $37,200, and noted that the particulars of the offending indicated that it involved 12 pounds of cannabis within about one week.
The thrust of the appellant’s submissions to the sentencing Judge was that he should be sentenced on the basis that he was merely a conduit through whom Mr Rizzo supplied drugs to the appellant’s close friends and associates. The appellant was said to have agreed to act as a conduit because he felt obliged to Mr Rizzo due to his association with him in the car club racing scene. The reward the appellant was said to have received in return for his actions was submitted to be some cannabis for his own use for the purpose of pain relief. It was further submitted that the actions which constituted the second count had occurred once the appellant had decided to end his relationship with Mr Rizzo.
The sentencing Judge rejected as probable that basis of the appellant’s dealing. In particular, on the basis of intercepted telephone calls, the Judge rejected as probable the proposition that the appellant was merely a conduit to supply close friends and acquaintances with cannabis, that he only received some cannabis in return for his part in the offending, and that the offending which constituted the second count occurred at a time when he was attempting to extract himself from his relationship with Mr Rizzo. The Judge also rejected as probable that the appellant used cannabis for medical purposes. It would appear that his Honour was rejecting the suggestion that the appellant only acquired the cannabis for medical purposes, as opposed to commercial purposes.
On the basis of the recorded telephone conversations and material found in the appellant’s home the sentencing Judge, although unable to find precisely the nature of the appellant’s role in the offending conduct, was nevertheless satisfied beyond reasonable doubt that the appellant’s role was commercial in respect of both offences, meaning that he was a distribution point in Melbourne for the cannabis that came from Mr Rizzo in South Australia. The Judge was also satisfied beyond reasonable doubt that the appellant’s commercial purpose in undertaking the offending conduct was for significant financial gain. In the absence of any other evidence, there was material before the sentencing Judge from which those inferences could properly be drawn and which could properly form the basis for rejecting the submissions of the appellant’s counsel. Those submissions suggested that these were not isolated offences, but were part of a course of conduct. While other offending was properly not the subject of the penalty, its pattern was relevant to the assessment by the Judge of submissions made by the appellant’s counsel.
However, the prosecution did concede that in relation to the first count, notwithstanding the agreement to send six pounds of cannabis to the appellant, only three pounds were in fact received by the appellant. There was also evidence to suggest that the missing three pounds formed part of the delivery the subject of the second count. The sentencing Judge appears not to have acted on that concession, and to have sentenced the appellant on the basis that the two transactions involved a total of 12 pounds of cannabis. However, if the concession was properly made, the first count might have been brought into a lower penalty range than would otherwise be the case, if in fact it was a sale of only three pounds. It seems, therefore, that there may have been a real risk of error in the sentencing process. If that were so, this Court would have to reconsider the sentence.
The appellant has a number of previous convictions. Relevantly, he was convicted in 1990 of trafficking in amphetamines and trafficking in ephedrine. At the same time he pleaded guilty and was convicted of handling stolen goods, namely a motor vehicle. These offences all occurred in Victoria. In respect of the two drug charges, the appellant was sentenced to three years imprisonment on one count and one year concurrently on the other. An additional two years imprisonment was imposed in respect of the handling charge. On appeal to the Court of Criminal Appeal the sentence in relation to the handling charge was reduced to 12 months imprisonment. The head sentence therefore became four years imprisonment, with a non-parole period of two years and six months.
As was noted in the sentencing remarks of the sentencing Judge in the present matter, the Court of Criminal Appeal in Victoria heard that the appellant at that time had a stable family life and had always been an excellent provider for his family, and was unlikely to re-offend. Similar submissions were put before the sentencing Judge on this occasion.
The sentencing Judge accepted that within the community in which he lived, the appellant would appear committed to his family and an honest member of the community, that to some, he would seem an “honest individual of high morality with impeccable character” and good role model for children and young people. However, he considered that his offences belied that, and that his motive was greed. General deterrence and personal deterrence were significant considerations. In arriving at the head sentence of three years and three months, the Judge allowed almost 28% by way of notional reduction for the appellant’s plea of guilty and the fact that his sentence would necessarily be served away from his family.
Taking into account the inferences which it was open for the sentencing Judge to draw and which he did draw, together with all the other material placed before the Judge, and even if there was an error in the amount of cannabis involved in the first count, I consider that the sentence actually imposed was moderate, and that the non-parole period was generous. This is notwithstanding the lower maximum penalty for the first count. If I were to re-sentence the appellant, I would not impose a lesser sentence than that imposed by the Judge. In the circumstances I can see no reason to interfere with the sentence imposed and I would dismiss the appeal.

[2002] SASC 442

12 December 2002