R v Canino

[2002] NSWCCA 76

CITATION:	Regina v Canino [2002] NSWCCA 76
FILE NUMBER(S):	CCA 60914/01
HEARING DATE(S):	6/3/02
JUDGMENT DATE:	8 March 2002
PARTIES :	Regina Charles Canino
JUDGMENT OF:	O'Keefe J at 1; Stein JA at 26; Buddin J at 27

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Coorey DCJ

COUNSEL :	Crown - Ms Woodburne Respondent - Odgers SC
SOLICITORS:
CATCHWORDS:	Criminal Law - Sentencing - Crown appeal - Knowingly take part in supply of prohibited drugs - Cannabis - Sentence manifestly inadequate - Parity - Definition of involvement of offender - Comparison of objective involvement in criminal enterprise - Comparison of subjective situation of offenders - Custodial sentence appropriate - Special circumstances
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999, s 44(2) Criminal Appeal Act 1912, s 5D
CASES CITED:	Lowe v The Queen (1984) 154 CLR 606
DECISION:	1. Crown appeal allowed ; 2. Existing sentence quashed ; 3. Respondent, Charles Canino, sentenced to imprisonment for two years to commence on 6 March, 2002 and to expire on 5 March, 2004 ; 4. Respondent, Charles Canino, is to become eligible for parole on 6 December, 2002.

- 2 -

60914/01

Stein JA
O’Keefe J
Buddin J

8 March 2002

Regina v CHARLES CANINO

Judgment

1 O’KEEFE J: This appeal was heard on 6 March, 2002. On that date the Court made orders as follows:

1. Crown appeal allowed.

2. Existing sentence quashed.

3. Respondent, Charles Canino, sentenced to imprisonment for two years to commence on 6 March, 2002 and to expire on 5 March, 2004.

4. Respondent, Charles Canino, is to become eligible for parole on 6 December, 2002.

The Court advised the parties that the reasons for the above orders would be given on 8 March, 2002. Those reasons are as follows:

2 This is an appeal pursuant to s 5D of the Criminal Appeal Act 1912 by the Crown against a sentence imposed in the District Court on 23 October, 2001 on Charles Canino (the respondent) on the basis that it was manifestly inadequate. The respondent had pleaded guilty to a charge of knowingly taking part in the supply of a prohibited drug. The prohibited drug was cannabis. The amount involved was 17.3 kg. Its street value was $200,000. The maximum penalty provided for the offence is ten years imprisonment or a fine of 2000 penalty units or both.

3 The cannabis in question had been brought from South Australia, where it had been accumulated or stockpiled by the respondent for the purposes of satisfying an order which had been placed for New South Wales. The District Court Judge imposed a sentence of two years imprisonment, but suspended the execution of the sentence conditionally on the respondent entering into a good behaviour bond.

4 Other persons had been engaged in the enterprise which involved the bringing into New South of the 17.3 kg of cannabis for distribution in this State. One was a relative of the respondent (Gligora). Another was the driver of the truck in which the drugs were carried from South Australia to New South Wales. A third was a person by the name of Jamie Spagnol who had been responsible for transporting the respondent from Sydney (Mascot) Airport on 24 July, 1999 to a place of trans-shipment of the drugs at Casula. There Spagnol, under the eye of the respondent, loaded the 40 bags containing the drugs from the truck in which they had been carried from South Australia to his own vehicle, after which he drove off, but was arrested very soon after.

5 Spagnol was sentenced in the District Court to a period of two years imprisonment, but that sentence was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 on the basis that he was regarded by the judge who sentenced him as merely a courier. The sentencing judge said:

“From the material before me, I accept that his role in this offence was not … as an organiser or leader in this supply of cannabis but otherwise, in the role of courier.”

6 Furthermore, the sentence was imposed on the basis that Spagnol’s limited involvement in the enterprise was “out of a sense of desperation to pay off a relatively large debt … that he had run up with a bookmaker…”. In addition, in determining to suspend the sentence, the judge took into account that Spagnol remained in prison for approximately five weeks, and whilst in prison embarked upon rehabilitation which it was thought had good prospects of success but could not be continued if he had to serve a full time custodial sentence. That rehabilitation involved Spagnol in an intensive residential course at Odyssey House where he remained continuously from the time of his release on bail up to the time of his sentencing on 16 May, 2000. In effect, this meant that Spagnol had spent a period of some ten months either in custody or in a situation which had many of the characteristics of custody.

7 At the sentence hearing relating to the respondent there was evidence concerning Spagnol’s involvement. It was different from and additional to that which had been placed before the judge who sentenced Spagnol. Although Spagnol had been sentenced on the basis that he was a only a courier, the District Court Judge who sentenced the respondent came to the conclusion, on the evidence that was before him, that “Spagnol (was) not a mere courier with only a marginal connection to the operation.”

8 At the sentencing hearing relating to the respondent there was extensive evidence of intercepted telephone conversations between the respondent and one of his relatives. In those conversations, the respondent said that he was “getting things started”, that some of the material had “been sitting for a while” (indicating that the drug had been stored and may have deteriorated) and stated that he was “gonna find 60 good ones…” (meaning 60 bags of cannabis in good condition). In another phone call, the respondent reported that he was “getting organised” and that he would be seeing somebody later that day about obtaining further drugs to complete the quantity required for shipment. In yet another conversation he reported that “there’s 58 there” (meaning that he had on hand 58 bags of the drug) and that “I’ve gone through ‘em all” (indicating that he had inspected the drugs to ensure their quality). The telephone conversations recorded by police indicated that the respondent was concerned about the quality of some of the drugs that he had acquired. This is the effect of his statement that: “I get a bit worried about ‘em, but then I look at some and they’re fuckin’ beautiful right … and then I look at others and I think jeez is he gonna complain…”

9 Another intercepted phone call on 23 July 1999 reveals arrangements being made between Gligora, (the relative who was described as a principal), and the respondent concerning arrangements for Spagnol to pick up the respondent at Mascot Airport and for Gligora to give Spagnol’s phone number to the respondent.

10 The role of the respondent in relation to the drugs in question has to be understood against the background of the law of South Australia. In South Australia it is not a criminal offence to cultivate cannabis in relatively small quantities. This means that in order to accumulate a substantial quantity of cannabis it is frequently necessary to collect amounts of the drug from a number of sources. This may involve moving around from place to place, with the number of places visited being dependent upon the amount of drug at each particular place and the total amount to be accumulated.

11 The intercepted telephone conversations point to the respondent employing others in connection with the handling of the drugs. Thus on the afternoon of 23 July 1999, whilst discussing two additional and apparently unaccounted for bags of the drug, the respondent explained that he “had ‘em in separate piles, but one of the boys accidentally put two from that pile”. Later conversations the same day reveal that the arrangement for the delivery of 40 (“four-o”) bags of the drug were made, that the respondent was “getting organised” and wanted Gligora to inspect the drugs before they were shipped out.

12 From the foregoing it can be seen that the respondent played a significant role in the collection, accumulation, inspection, storing and shipping of the illegal drugs. He was no mere courier. His involvement was clearly deeper and more fundamental than that of Spagnol, even if Spagnol be regarded as more than a mere courier. This is further highlighted by the fact that the respondent travelled to Sydney and oversaw the transfer of the drugs from the vehicle that had brought them from South Australia into Spagnol’s vehicle, which was to be used as part of the distribution process. He waited for the money for the drugs so that he could presumably take it back to South Australia.

13 The respondent’s counsel submitted to the sentencing judge that there should be parity in the sentences imposed on the respondent and Spagnol. Indeed, his submission went so far as to say that the sentences should be the same. He argued in the District Court and before this Court that a disparity not permitted by law would arise if the respondent were to receive a custodial sentence rather than a suspended sentence of the kind that Spagnol had received.

14 The sentencing judge took the view that whilst a custodial sentence was indicated by virtue of the seriousness of the offence, and was supported by the statistics produced by the Judicial Commission, the onus of proving beyond reasonably doubt the difference between the roles of the respondent on the one hand and Spagnol on the other in the criminal enterprise had not been satisfied by the Crown. As a consequence he felt compelled by authority to impose a sentence on the respondent that was the same as that imposed on Spagnol. He did so virtually to the exclusion of all other considerations. In so doing, I am of opinion that the sentencing judge fell into error.

15 The principle of parity was dealt with by the High Court in Lowe v The Queen (1984) 154 CLR 606. Dawson J, with whom Wilson J agreed, summarised the principle as follows:

“There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or his involvement in the offence are different ten different sentences may be called for but justice should be even-handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of a grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.” (at 623)

Gibbs CJ expressed the principle as follows:

“The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are no always equal, such matters as the age, background, criminal history and general character of the offender and the part which he or she played in the commission of the offence have to be taken into account.” (at 609)

Brennan J said:

“The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedence are comparable is unjust. A justified sense of unfair treatment is produced in either case. To facilitate the comparison of conduct and antecedence it is desirable that where practicable, co-offenders be sentenced by the same judge at the same time.
As regards must be had to the comparative gravity of the conduct of co-offenders and to their respective antecedence, an appealable error is not shown by an offender who merely points to a lesser sentence imposed upon his co-offender. To say that an appellate court is bound to take the lesser sentence as the norm even though it is inappropriately lenient is tantamount to saying that ‘where you have one wrong sentence and one right sentence (the) court should produce two wrong sentences’ – a proposition that cannot be accepted.” (at 617)

Notwithstanding this last mentioned statement by Brennan J, Mason J took a different view. Where there is a case of discrepancy, he said that the correct approach is:

“… that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate.” (at 613-614)

However, he emphasised that the application of the principle should not be reduced to a formula or to rigid categories (at 611).

16 From these statements of principle it is clear that parity of sentencing was a relevant matter for the sentencing judge to consider in the present case. That did not involve the application of any rigid formula, but it did involve the necessity for the role which the respondent played in the commission of the offence to be carefully analysed and defined and then compared with the role played by his co-offender, Spagnol.

17 In the present case the sentencing judge failed to analyse and define the role of the respondent. No reference is made by him in his remarks on sentence to the matters revealed by the intercepted telephone conversations in which the respondent had been involved. His categorisation of the respondent as other than a mere courier involves a negative. It tells what the respondent was not. It leaves the actual role of the respondent undefined. Absent such a definition the process of comparison called for by the High Court in Lowe cannot be undertaken. It was not adequately undertaken by the sentencing judge. To say that because Spagnol was more than a mere courier and that the respondent was also more than a mere courier their respective roles were comparable makes an assumption in relation to their respective roles and the characterisation of their involvement which is both unjustified and wrong.

18 The analysis by the sentencing judge of the actions of the respondent, to the extent that it was undertaken, commenced with the arrival of the respondent in Sydney on 24 July, 1999. In so doing he seems to have overlooked, and certainly does not refer to, the events involving the respondent that took place in South Australia prior to his leaving for New South Wales. Yet that material is quite pivotal to an assessment of the criminality of the respondent – an essential matter in any assessment of the comparative conduct of the co-offenders in question.

19 Clearly the role of the respondent in the criminal enterprise was greater, indeed significantly greater, than that of Spagnol. This of itself would be sufficient to preclude the application of the parity principle as a result of which the sentencing judge felt himself compelled to impose what he regarded as, and which clearly was, an inadequate sentence. If that were the only error it would be a sufficient basis for this court to intervene. However, there are further considerations which mandate intervention by this court to which I will now refer.

20 The actual comparison required by the principle of parity does not involve a rigid approach nor does it depend on a question of onus, let alone a standard of proof beyond reasonable doubt. The principle of parity is a manifestation of a consideration of justice that points to the imposition of comparable sentences on co-offenders whose conduct and antecedents are comparable. It requires a comparison by the court of the criminal conduct and antecedents of the co-offenders. If they are comparable, the principle applies. If they are not, it does not.

21 In the present case not only were the respective roles of the respondent and Spagnol in the criminal enterprise different, but so too were the subjective elements of each:

(a) Spagnol was only 26. The respondent was 40.

(b) Spagnol had spent some ten months either in custody or in compulsory residence at Odyssey House. Whilst this is not imprisonment, it is a real deprivation of liberty cognate to imprisonment. On the other hand the respondent had spent only 18 days in custody, namely the time between his arrest on 24 July, 1999 and his being admitted to bail on 10 August, 1999.

(c) A custodial sentence would have prevented Spagnol’s drug rehabilitation at Odyssey House proceeding to conclusion. The respondent had no such factor which operated in his case.

22 In fixing the sentence His Honour makes no mention of the question of general deterrence. Yet in a case such as the present that is an important factor. The offence committed by the respondent was objectively serious. It involved the bringing into New South Wales of a substantial quantity of an illegal drug for distribution in this State. It was a planned enterprise. It was an enterprise that involved the collection, accumulation, storage, inspection and transportation of the drug in question. The respondent was involved in each of these elements of the enterprise. The enterprise was conducted as a business. It is important that a clear message be sent to the respondent and to those others who may engage in like conduct that such conduct will attract severe penalties in this State.

23 In my opinion, conformably with authority, the case is one for the imposition of a custodial sentence on the respondent. That sentence, again conformably with authority, should be the least sentence that would have been imposed in the court below had the judge not fallen into the errors to which I have referred. In fixing such sentence the court needs to have regard to the time that elapsed between the plea of guilty and the primary sentencing as well as the time that has elapsed between the imposition of such sentence and the hearing of the present appeal. Furthermore, in determining the sentence regard must be had to the double jeopardy to which the respondent has been exposed as well as to the subjective or personal factors applicable to the respondent.

24 When regard is had to the foregoing factors, I am of opinion that it would not be appropriate to impose a sentence of imprisonment of less than two years. And I do think that it would be appropriate to suspend any such sentence. It is important that this court indicate the community’s disapprobation of conduct of the kind in which the respondent engaged. The message needs to be clear that the bringing of drugs into New South Wales for distribution in this State will attract a custodial sentence.

25 In the present case there are, in my opinion, special circumstances which make it appropriate that the statutory ratio of non-parole period to the term of the sentence should be varied from that provided for in s.44(2) of the Crimes (Sentencing Procedure) Act 1999. Some of the factors which lead to that conclusion have been adverted to paragraph 23 above. Another factor is that the respondent has spent the time between the date on which he was sentenced in the District Court and the date of hearing of the present appeal reporting in accordance with the conditions of his good behaviour bond. The fact that the respondent and his family ordinarily reside in South Australia whereas he will be imprisoned in New South Wales will render his term of imprisonment more stressful and hence more onerous for him also underpins the conclusion to which I have referred.

26 STEIN JA : I agree

27 BUDDIN J: I agree

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