R v Carbone - [2012] SASCFC 34

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CARBONE & ORS
[2012] SASCFC 34
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Kourakis and The Honourable Justice Stanley)
13 April 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - RELEVANT MATTERS - GENERALLY
Appeal against sentence by three co-accused – co-accused sentenced in the District Court in relation to drug trafficking charges and related offences.
Anna Carbone: pleaded guilty to two counts of trafficking in methylamphetamine or amphetamine contrary to s 32(3) of the Controlled Substances Act 1984 (SA) ("the Act") - the two counts were representative counts - appellant previously charged with four additional counts which were withdrawn - appellant admitted the offending in respect of two of the withdrawn counts - whether the Judge erred by taking into consideration all six counts when sentencing the appellant.
Rocco Carbone: pleaded guilty to 14 counts of trafficking in methylamphetamine or amphetamine - the sentencing Judge erroneously referred to one of the counts to which the appellant pleaded guilty as a count of trafficking in a commercial quantity of methylamphetamine - whether this error caused the sentencing discretion to miscarry - whether the sentencing Judge had regard to offences which the appellant did not admit.
Kirk: pleaded guilty to 12 counts of trafficking in methylamphetamine or amphetamine - the Judge sentenced Kirk on the basis that he pleaded guilty, among other counts, to two counts of trafficking in a commercial rather than a basic quantity of methylamphetamine - whether the Judge started with the wrong maximum penalty for the two offences - whether the head sentence imposed is manifestly excessive.
Held:
Anna Carbone: Appeal allowed - the Judge was in error in regarding six occasions as relevant to the sentence imposed as two of the occasions were not admitted by the appellant - the head sentence and non-parole period imposed by the Judge were appropriate - there was good reason to suspend the appellant's sentence.
Rocco Carbone: Appeal dismissed – while the Judge erred in his description of one of the charges to which the appellant pleaded guilty, the sentence ultimately imposed was within an appropriate range of sentences given the level of offending.
Kirk: Appeal dismissed – while the Judge proceeded on the basis that the appellant was liable to the higher maximum penalty in relation to the two wrongly described counts, the sentence and head sentence imposed were appropriate in the circumstances.
Controlled Substances Act 1984 (SA) s 32(2), s 32(3); Criminal Law Consolidation Act 1935 (SA) s 138, s 353(4); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(b), s 18A, referred to.
R v Beary (2004) 151 A Crim R 388; Norris v AT (a child) (2003) 138 A Crim R 497, discussed.
Richardson v Police [2009] SASC 297; Field v Police [2009] SASC 354; R v Papadopoulos (2010) 108 SASR 124; R v Day [2009] SASC 84, considered.

R v CARBONE & ORS
[2012] SASCFC 34
Court of Criminal Appeal: Sulan, Kourakis and Stanley JJ

SULAN J: The defendants and appellants, Anna Maria Carbone, Rocco Carbone and Kevin Allan Kirk appeal against sentences imposed by the District Court on 29 August 2011.
Ms Carbone pleaded guilty to two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (“the Act”). She was sentenced to two years’ imprisonment with a non-parole period of ten months’ imprisonment.
Rocco Carbone pleaded guilty to 14 counts of trafficking in methylamphetamine or amphetamine. He was sentenced to nine years and three months’ imprisonment, with a non-parole period of six years.
Kevin Allan Kirk pleaded guilty to 12 counts of trafficking in methylamphetamine or amphetamine. He received a sentence of six years and nine months’ imprisonment, with a non-parole period of four years and six months’ imprisonment.
Shortly, I will deal with the background to the events which led to charges being laid and eventually to the pleas of guilty by each defendant to the various offences. Section 32(3) of the Act provides that the maximum penalty for each offence of trafficking in a controlled drug is a fine of $50,000 or ten years’ imprisonment, or both. The maximum penalty for trafficking in a commercial quantity of the drug, contrary to s 32(2) of the Act, is a fine of $200,000 or imprisonment for 25 years, or both.
On 25 November 2011, the Court ordered that Ms Carbone’s appeal be allowed, that the sentence imposed upon her be set aside and, in substitution thereof, she was sentenced to one year and nine months’ imprisonment, with a non-parole period of seven months’ imprisonment, suspended upon her entering into a bond in the sum of $500, to be of good behaviour for three years. The Court indicated that it would publish its reasons when it determined and published reasons in the appeals of Mr Carbone and Mr Kirk.
The Court now provides its reasons in respect of the three appeals.
Background
Over many months, the police had been conducting a covert investigation into the conduct of a number of people, including Rocco Carbone who was the central figure in the investigation. Multiple telephone intercepts of conversations between Carbone and a number of other people were recorded. Eventually, 14 people were charged with various offences of trafficking in methylamphetamine or amphetamine. One of the defendants was charged with trafficking in cocaine. The Information charged offences from March 2008 to June 2008. Rocco Carbone, who was charged in every count, was the central organiser of the distribution of the drugs, both to middle-level dealers and to other street dealers. He was also charged with offences of money laundering, which were alleged to be the proceeds of drug-related dealings. In all, Rocco Carbone was charged with 75 counts of trafficking in methylamphetamine or amphetamine, and three counts of money laundering contrary to s 138 of the Criminal Law Consolidation Act 1935 (SA). In each case, Rocco Carbone was jointly charged with one or more defendants, but not all defendants were charged with each count.
The matters were all listed before a District Court Judge who was to preside over the trial. Over a period of approximately one year, each defendant entered pleas of guilty to various counts, having agreed with the DPP the factual basis of those pleas of guilty.
Throughout the hearings in 2010, the Judge informed the defendants that the amount of reduction in sentence would be graduated according to the stage at which their plea was entered and that the amount of discount for a plea entered a short time before trial would be virtually nil.
All 14 defendants were originally charged on an Information dated 2 November 2009, and each pleaded not guilty. On 31 March 2010, their trial was listed to commence on 7 February 2011. In April 2010, two of the defendants were arraigned on a fresh Information and pleaded guilty. On 25 May 2010, another defendant pleaded guilty on a fresh Information and was remanded for sentencing submissions.
On 31 May 2010, a further and new Information was filed, which is the Information upon which the three appellants pleaded guilty.
In December 2010, the appellant, Anna Maria Carbone, indicated through her counsel that she would eventually be pleading guilty after discussions with the DPP were completed. On 7 February 2011, she pleaded guilty to two counts of trafficking in methylamphetamine or amphetamine in April and June 2008. She also agreed that the two counts were representative of a course of conduct that included two further counts of trafficking in the drug in April 2008.
On 20 December 2010, the appellant, Kirk, pleaded guilty to 12 counts of trafficking in methylamphetamine or amphetamine, contrary to s 32(3) of the Act. In sentencing Kirk, the Judge stated:
Kevin Allen Kirk, on 20 December 2010 you pleaded guilty to two counts of trafficking in a commercial quantity of methylamphetamine (counts 1 and 63), and nine counts of trafficking methylamphetamine (counts 7, 12, 19, 25, 29, 34, 42, 43 and 50). It was agreed between you and the DPP that the pleas would be accepted in satisfaction of the information on the basis that they formed part of a course of conduct that included all of the other counts with which you had been charged. Those other charges comprised one count of trafficking in a commercial quantity of methylamphetamine and 37 counts of trafficking in methylamphetamine.
I will return to those remarks later in these reasons.
On 9 February 2011, five days before the trial, the appellant, Rocco Carbone, pleaded guilty to 14 counts of trafficking in methylamphetamine. The Judge erroneously stated that Carbone had pleaded guilty to 13 counts of trafficking in methylamphetamine, and one count of trafficking a commercial quantity of the drug. The plea of guilty was on the basis that it was part of a course of conduct which included a number of similar offences. I will deal with the specific detail of those offences later in these reasons.
The extent of Anna Carbone’s involvement in the offences was that, on occasions, she assisted by packaging drugs for sale. In respect of the counts to which she pleaded guilty, the facts were that on 15 April 2008, Rocco Carbone contacted her and asked her to wrap up approximately 3.5 grams of methylamphetamine. The drug was to be collected later that day by Kirk. Kirk contacted Rocco Carbone and advised him that the drugs had been collected.
The second count to which she pleaded guilty occurred on 19 June 2008 when Rocco Carbone received a request from one of the co-defendants for a quantity of the drug. Rocco Carbone telephoned Kirk and Anna Carbone requesting that she provide 3.5 grams of methylamphetamine to Kirk, who subsequently collected the drug and delivered it to the ultimate purchaser’s address.
The two other counts, which were representative counts, related to events in mid-2008 when, at the request of Rocco Carbone, Anna Carbone packaged and provided drugs to persons who attended at her home. Initially, Anna Carbone had been charged with four additional counts, which were withdrawn. Ultimately, she admitted the offending in respect of two of the withdrawn counts.
Anna Carbone was 47 years of age when she was sentenced. She had previously been married to Rocco Carbone for 18 years before they separated in 1999. At the time that Anna Carbone was sentenced, their 21-year-old daughter lived with her. Anna Carbone maintained contact with Rocco Carbone who would visit the home from time to time to see his daughter. After Anna Carbone was arrested on 10 July 2008, she lost her job and was then dependent upon Centrelink benefits.
In the scheme of the enterprise, Anna Carbone was a relatively minor player. The Judge accepted that she received no profit from her participation, and that she was motivated by affection for Rocco Carbone. In sentencing her, the Judge said:
I am prepared to accept that you were motivated by affection, but I do not regard your offending as minor. Although you may not have been aware of the full extent of Rocco Carbone’s offending, you knew he was engaged in serious drug offences and you willingly assisted him and did so on about six occasions. Your offending was not isolated, nor was it impulsive.
The Judge dealt with the lateness of Anna Carbone’s plea of guilty. He observed that, on 23 December 2010, Anna Carbone had indicated that she intended to plead guilty, subject to finalising discussions with the DPP.
On 11 January 2011, having resolved issues between her and the DPP, Anna Carbone indicated that she would plead guilty. The Judge stated that he would treat her as having entered her pleas in December, rather than in February 2011. He then indicated that she would not be given the same amount of credit as the other defendants who had entered their guilty pleas much earlier in 2010. He sentenced her to two years’ imprisonment, reduced from 27 months on account of her late plea. He fixed a non-parole period of ten months’ imprisonment. The reduction for her plea of guilty was, therefore, about 11 per cent.
On appeal, it was submitted that there was a disparity in the manner in which the sentencing Judge dealt with Anna Carbone and with the others who had pleaded guilty at a late stage in December 2010. It was submitted that, in respect of one defendant who submitted a late plea, that defendant received a reduction of 25 per cent. In the case of another defendant who had pleaded guilty in February 2010, that defendant received a reduction of 25 per cent.
Counsel for the DPP conceded that there did not appear to be any pattern or explanation as to why the Judge had been inconsistent in the percentage reductions he had given, despite having warned all defendants that a late plea would not attract as great a reduction to their sentence as an earlier plea.
One complaint in respect of the Judge’s sentencing remarks was that he had regard to six occasions when, in fact, Anna Carbone had pleaded guilty to two occasions which she asked to be treated as representative of her offending on two further occasions.
The DPP submitted that the six occasions of assisting Rocco Carbone referred to by the Judge may not have included the occasions charged in counts which were withdrawn and denied by Anna Carbone. That submission is to be rejected. It is clear from the sentencing remarks that the sentencing Judge was referring to the six occasions which were the subject of charges laid against both Rocco Carbone and Anna Carbone. One of those charged offences was an occasion when a large quantity of methylamphetamine was found in the freezer at Anna Carbone’s home. The DPP had previously withdrawn that charge, and it was not admitted by Anna Carbone and Rocco Carbone.
Counsel for the DPP conceded that, despite his submission, it was difficult to ascertain what the sentencing Judge had in mind when he talked of the six occasions. If the six occasions related to charged offences, then the Judge was in error.
The Judge was in error in regarding the occasions, other than the four occasions to which I have earlier referred, as relevant to the sentence. In my view, the reliance by the Judge on two occasions which were not admitted or agreed was an error. In considering whether the sentence of Anna Carbone should be suspended, the Judge had regard to her involvement in conduct which was not admitted by her and accepted by the Crown as not being relevant to her sentencing.
The various errors that have been identified and conceded by the DPP must result in this Court having to review the sentencing. It was, therefore, necessary for the Court to reconsider the adequacy of the sentence, which included whether good reason existed to suspend the sentence.
In reconsidering the sentence, this Court had regard to the admitted offending and the two offences which were to be regarded as representative of Anna Carbone’s conduct. Prior to this offending, Anna Carbone had no criminal record. She was influenced by Rocco Carbone. She made no profit from her involvement. A number of other defendants whose involvement in offending was no less serious than that of Anna Carbone, received suspended sentences. The Court considered that good reason existed to suspend her sentence. In the Court’s view, the head sentence and non-parole period imposed by the Judge was appropriate.
The Court noted that Anna Carbone had spent three months in custody at the time of the hearing of the appeal. The Court, therefore, sentenced her to one year and nine months’ imprisonment, with a non-parole period of seven months’ imprisonment. The sentence was suspended.
I now turn to the appeals by Kevin Allan Kirk and Rocco Carbone.
Representative counts
Before I deal with each appellant’s appeal, I make some general observations about the approach to be adopted in the case of representative counts. Both Rocco Carbone and Kirk pleaded guilty to a number of counts and asked that they be dealt with on the basis that those counts are representative of a wider involvement in offending which is the subject of charged counts to which they did not plead guilty.
Section 10(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) provides that the Court shall have regard to a course of conduct. In considering the counts to which Rocco Carbone and Kirk pleaded guilty as being representative of a range of conduct, they are not to be sentenced for offences to which they have not pleaded guilty. Nevertheless, in considering the final sentence, the Court will have regard to the course of conduct admitted by them. The Court will, in imposing sentence for the offences to which they have pleaded guilty, take into account that those offences were not isolated.
Kevin Allan Kirk
On 20 December 2010, Kirk pleaded guilty to 12 counts of trafficking in methylamphetamine or amphetamine, contrary to s 32(3) of the Act. On that day, the Judge amended two counts, Counts 1 and 63, of the Information which had charged Kirk with trafficking in a commercial quantity of the drug, contrary to s 32(2) of the Act. The DPP accepted Kirk’s pleas in satisfaction of the Information on the basis that they formed part of a course of conduct that included one count of trafficking in a commercial quantity of methylamphetamine, and 37 counts of trafficking in methylamphetamine.
On 29 August 2011, Kirk was sentenced to six years and nine months’ imprisonment, with a non-parole period of four years and six months’ imprisonment, commencing from 18 March 2011. The Judge commenced with a sentence of seven years and nine months’ imprisonment, which he reduced by nine months on account of the plea of guilty, and a further three months for time spent in custody and on home detention.
Between 28 March 2008 and his arrest on 10 July 2008, Kirk assisted Carbone in conducting numerous sales of methylamphetamine and amphetamine. At Carbone’s direction, Kirk delivered different quantities of drugs to various purchasers. He was paid by the customer and he accounted to Carbone. He also assisted Carbone to cut and package drugs.
At the direction of Carbone, Kirk drove to Perth on two occasions and sold methylamphetamine to the value of around $27,000 and $27,500 respectively to an identified purchaser. The first occasion was on 28 March 2008 when Kirk delivered drugs to a person named Ellem, for which he received $27,000 which he accounted to Carbone. The second occasion was on 4 June 2008 when Kirk drove to Perth, delivered a quantity of drugs and received $27,500 of which $19,000 was delivered to Carbone upon Kirk’s return.
The sentencing remarks
The Judge described Kirk as having played a significant role in a substantial commercial enterprise involving drug distribution. Kirk, who was a heavy user of methylamphetamine, received drugs for his role and assistance in the enterprise. He also received money for fuel and daily living expenses.
The Judge noted that Kirk was 46 years of age at the time he was sentenced. He has a long history of drug abuse. He has numerous prior convictions. In 1990, he was sentenced to two years’ imprisonment for drug trafficking in Queensland. His offending commenced in Victoria in 1971 and he has appeared before the courts for a variety of offences involving burglary, theft and arson, as well as the drug offences to which I have already referred.

Kirk was rewarded for his involvement with Rocco Carbone by being provided with drugs to satisfy his drug addiction. The Judge correctly observed that the drug trade is able to flourish because the major dealers can find people such as Kirk to assist them.
The defendant complains that the Judge sentenced him on the basis that he pleaded guilty, among other counts, to two counts of trafficking in a commercial quantity of a controlled substance (Counts 1 and 63) when, in fact, these counts had been amended on 20 December 2010 to the lesser offence of basic trafficking in a controlled substance. Counsel submits that the Judge erroneously elevated the seriousness of Kirk’s conduct. Counsel submits that the sentencing Judge started with the wrong maximum penalty for the two offences. Counsel further submits that the Judge erred in drawing an inference that the two Western Australian transactions were in an upper level of commerciality.
Counsel contends that the Judge erred in sentencing the appellant on the basis that he played a “significant role in a substantial commercial enterprise”. Rather, Kirk played an insignificant role in the commercial enterprise lead by Carbone. Kirk was not the only courier.
The defendant complains that the Judge misconstrued his antecedent history by concluding that Kirk has numerous previous convictions, “in the main for offences of dishonesty and drug related offences”. The argument appears to be that Kirk has an antecedent history in relation to dishonesty offences and traffic offences, and to infer that Kirk is a regular, ongoing drug offender flies in the face of his antecedent history.
Counsel submits that the head sentence imposed of seven years and nine months’ imprisonment is manifestly excessive when compared with the head sentence imposed upon Carbone. In addition, counsel contends that the Judge failed to have regard to the principle of totality when sentencing the appellant or, in the alternative, did not give adequate weight to factors such as rehabilitation and the discount to be given for Kirk’s guilty plea.
The wrong maximum penalty
Counsel for the DPP accepts that the Judge was in error in describing two of the offences to which the defendant pleaded guilty as trafficking in a commercial quantity of methylamphetamine or amphetamine. As is clear from the maximum penalties referred to in para [X] of these reasons, there is a substantial difference between them. I accept the submission that, in the circumstances of this case and in the absence of any express reference to the applicable maximum penalty, the Judge proceeded on the basis that the appellant was liable to the high maximum penalty in respect of the more serious charges.
In R v Beary,[1] the sentencing Judge acted on the basis that the maximum penalty for an offence of money laundering was 25 years when, in fact, the maximum penalty was 20 years. The count of money laundering was in addition to 27 counts of theft. The defendant had entered into arrangements with a number of shop owners to sell them goods which the defendant had stolen from supermarkets. Callaway JA considered that not every mistake as to the maximum penalty vitiates the sentencing discretion exercised by the sentencing judge. He said it depends on the circumstances. He expressed the view that, if the court considers the mistake as to a maximum penalty is immaterial, it will not reopen the discretion. He said:[2]
... The effect of failing to take into account a mandatory consideration is part of the general law relating to the exercise of discretions.
Mason J’s words are strikingly similar to what Brooking JA said in R v RJE:
The maximum penalty for an offence is ordinarily an important consideration, but it cannot, I think, be the law that a mistake made by a sentencing judge about the maximum will necessarily and in all circumstances vitiate the exercise of the sentencing discretion in relation to that offence where a sentence of imprisonment is passed for it. It may be possible to characterise the error as immaterial.
[Original emphasis and footnotes omitted.]
[1] (2004) 151 A Crim R 388.
[2] R v Beary (2004) 151 A Crim R 388 at 396.
Buchanan JA agreed with Callaway JA that a mistake as to the maximum sentence does not reopen the sentencing discretion, unless the appellate court is satisfied that the error was material.[3]
[3] See also Richardson v Police [2009] SASC 297 at [9] (White J); Field v Police [2009] SASC 354 at [10] and [11] (Gray J).
I adopt the comments of Callaway JA in Beary, in which His Honour observed that:[4]
... Even where a relatively low sentence is imposed compared with, say, a 15-year maximum which the judge mistook for a 20-year maximum, the judge’s mind may have been affected by a perception that, in the view of the legislature, this was not just a serious offence but a very serious offence. Because we are concerned with instinctive synthesis, such a perception may be unconscious but none the less effective because it is unconscious. It may have been decisive if the judge was wavering between, say, four-and-a-half years and four years imprisonment or a longer or shorter non-parole period.
[Original emphasis.]
[4] R v Beary (2004) 151 A Crim R 388 at 396 [20].
In Norris v AT (a child),[5] Malcolm CJ, with whom Templeman and Miller JJ agreed, said that the fact that the sentencing Judge expressly took into account an incorrect maximum penalty when determining a sentence to be passed has the result that the exercise of the discretion has necessarily miscarried. It follows that the defendant must be resentenced. Malcolm CJ did not discuss the question of materiality.
[5] (2003) 138 A Crim R 497 at 503.
Where a judge is passing one sentence pursuant to s 18A of the Sentencing Act for numerous offences, the fact that he considered that two of the offences with which he is dealing had substantially greater maximum penalties than, in fact, they had, risks creating in the mind of the judge a perception, albeit it may be unconscious, that the overall offending is more serious.
It is my view that the mistake of the sentencing Judge was material. He exercised his discretion pursuant to s 18A of the Sentencing Act. In so doing, it must be assumed that he took into account that two of the offences with which he was dealing carried a maximum penalty of 25 years and $200,000 when, in fact, those offences carried only a maximum penalty of ten years and $50,000. In my view, that is a material error which must result in this Court having to reconsider the sentence afresh.
It follows, therefore, that the defendant, Kirk, must be resentenced. However, it does not follow that, if the discretion is reopened, the court will necessarily conclude that a different sentence should have been passed.
Resentence
Section 353(4) of the Criminal Law Consolidation Act 1935 (SA) provides that the Full Court, if it thinks a different sentence should have been passed, must substitute such other sentence that it considers should have been passed (but it may not increase the sentence) or remit the matter to the court of trial for resentencing. In any other case, the appeal is to be dismissed.
In resentencing the defendant, this Court will have regard to all factors which the sentencing court is required to consider.
The defendant pleaded guilty to 12 counts of trafficking in methylamphetamine or amphetamine between 27 March 2008 and 1 June 2008, contrary to s 32(3) of the Act. The maximum penalty for each offence is 10 years’ imprisonment or $50,000, or both. The defendant admitted a course of conduct up until 10 July 2008 in which he trafficked in methylamphetamine or amphetamine on 41 other occasions by delivering the drug to others and collecting payment which was transferred to Carbone.
As part of the course of conduct, he also admitted money laundering, contrary to s 138 of the Criminal Law Consolidation Act 1935 (SA). On two occasions, being in May and June 2008, he was party to laundering funds in excess of $2,500 and less than $30,000. The total conduct demonstrates a substantial involvement in the business of trafficking in drugs, of which Carbone was the main organiser. Kirk was involved in moving the drugs and supplying them to others and collecting payment. The suggestion of his counsel that his role was insignificant in the commercial enterprise is to be rejected.
The offences were extremely serious. This was an enterprise which provided drugs to a significant number of users. It was well organised. On two occasions, trips were made to Western Australia where substantial transactions occurred.
The personal factors relating to Kirk demonstrate that he has some prospects of rehabilitation. Nevertheless, he has a significant criminal record. He has prior convictions for dealing in drugs, for which he received sentences of imprisonment. In my view, the offending called for a substantial sentence of imprisonment. Kirk’s involvement was ongoing. I would also impose one sentence pursuant to s 18A of the Sentencing Act. I have had regard to the principle of totality in considering the appropriate sentence. I have also reduced the sentence by three months to take into account the time Kirk has spent in custody and on home detention bail. Further, I have applied a reduction to the sentence of nine months, having regard to Kirk’s plea of guilty, even though it was very late.
The sentence imposed by the sentencing Judge was modest, given the circumstances that Kirk was part of an ongoing and organised enterprise of trafficking in methylamphetamine or amphetamine. I consider that the sentence of six years and nine months’ imprisonment, with a non-parole period of four years and six months’ imprisonment is an appropriate sentence. The sentence should be backdated to 18 March 2011 when bail was revoked.
Despite the errors that have been identified in imposing the original sentence, the sentence imposed by the sentencing Judge was entirely appropriate. I would dismiss the appeal.
Rocco Carbone
On 9 February 2011, five days before the trial was listed to commence, Rocco Carbone pleaded guilty to 14 counts of trafficking in methylamphetamine or amphetamine between March and July 2008. The Judge sentenced him on 29 August 2011, pursuant to s 18A of the Sentencing Act, to nine years and three months’ imprisonment, with a non-parole period of six years’ imprisonment, the sentence to be backdated to 9 February 2011 when Carbone’s bail was revoked. The Judge started at 10 years’ imprisonment, which he discounted by six months, having regard to the plea of guilty, and three months for the period spent in custody and on home detention bail.
In sentencing Carbone, the Judge said:
On 9 February 2011, five days before your trial was due to commence, you pleaded guilty to one count of trafficking in a commercial quantity of methylamphetamine (Count 63) and 13 counts of trafficking in methylamphetamine (Counts 3, 7, 12, 13, 14, 21, 34, 35, 39, 41, 42, 50 and 73) on the basis that the offences formed part of a course of conduct that included other counts of trafficking. There was, however, a dispute between you and the DPP as to the magnitude of that course of conduct.
In his sentencing remarks, the Judge was in error in referring to Count 63 as a count of trafficking in a commercial quantity of methylamphetamine. That charge had been downgraded to simple trafficking. As indicated earlier in paragraph [X], the maximum penalty for trafficking is substantially less than the maximum penalty for trafficking in a commercial quantity of the drug. That error was conceded by the DPP.
For the reasons given in respect of Kirk in paragraphs [X] [X], that error, in my view, must result in the sentencing discretion having miscarried and a requirement, therefore, to resentence Carbone.
A further complaint about the Judge’s approach was that he had regard to offences which Carbone did not admit and which did not form part of the representative counts which he did admit. There were 75 counts alleged on the Information of trafficking in a controlled drug which included the 14 counts to which he pleaded guilty. It was accepted by his counsel at trial that Carbone was trafficking in methylamphetamine, that there was a commercial aspect to it and that he participated in a serious and involved way.
In the course of submissions before this Court, counsel conceded that the 14 counts to which Carbone had pleaded guilty were representative counts. Counsel maintained that Carbone disputed Count 1, which alleged trafficking in a controlled drug, the particulars of which alleged that Carbone agreed to sell to an associate in Western Australia named Ellem, a quantity of methylamphetamine for $27,000. It was alleged that Carbone directed Kirk to drive over to Western Australia and deliver the drugs to Ellem.
Kirk had pleaded guilty on the basis of the facts outlined, and agreed that he returned to South Australia with the money. There were a number of telephone intercepts and messages between Carbone and Ellem. It was submitted before the sentencing Judge that Carbone was sending Ellem quantities of olive oil and iced coffee. The sentencing Judge rejected that submission as inherently implausible. He concluded:
I reject that submission as inherently implausible. I am not aware of any shortage of iced coffee in Western Australia. It is feasible that Carbone may have been involved in selling olive oil but the arrangements that were put in place were veiled in secrecy. The men communicated in code and in the course of those communications Carbone expressed concern that Kirk’s vehicle might be searched at the border. I do not accept that this might have been a legitimate transaction.
The Judge was satisfied beyond reasonable doubt that Carbone made various calls and sent various SMS messages to Ellem and that, pursuant to Carbone’s instructions, Kirk drove to Western Australia and met Ellem, that Kirk delivered something to Ellem in exchange for which Carbone was to receive money, and that Kirk returned to South Australia and met Carbone at Waterloo.
It is conceded by the DPP that the trafficking which was the subject of Count 1 was charged as an offence contrary to s 32(3), not s 32(2) of the Act. In resentencing Carbone, I accept counsel’s submission that the charge alleges trafficking in a controlled substance, contrary to s 32(3). Count 1 was not admitted by Carbone and, therefore, in resentencing him I draw no inference or conclusion in respect of that dealing.
Counts 76 and 77, which allege money laundering in May and June 2008 respectively, are disputed. I have had no regard to those offences. Count 74 relates to 90 grams of methylamphetamine found in a freezer at Anna Carbone’s home. Rocco Carbone denies that he was in possession of the drug. In resentencing him, I have disregarded the allegations relating to that count.
As to Count 78, it alleges money laundering jointly with Karen Whyte. The facts relating to that count were that on Friday 20 June 2008, Carbone rang Ms Whyte and told her that he was supposed to collect money in Western Australia. He arranged with Whyte that she would travel to Western Australia where she would meet a named person who would give her a parcel to bring back to South Australia. When she was checking in at the Perth airport to return to Adelaide, police apprehended her, searched her handbag and found in three separate locations a total of $27,500 cash. While she was with the Police, Carbone rang her. She then sent him an SMS message stating not to call the number. When she left the Police, she contacted Carbone. She again rang him when she returned to Adelaide. Carbone conceded that she was in trouble and he himself was in trouble.
Insofar as that count is concerned, Carbone denies involvement in any illegal conduct concerning Ms Whyte. Although the circumstances are suspicious, I will not have regard to the DPP allegation in sentencing Carbone.
It follows, therefore, that Carbone is to be sentenced for 14 counts of trafficking in methylamphetamine or amphetamine. In addition thereto, the Court is to take into account that the offending was representative of a further 58 transactions of trafficking in methylamphetamine or amphetamine over a period of approximately three months.
On the basis of the material before this Court, Carbone is to be sentenced as a person who was not at the top of the chain of dealing in methylamphetamine, but who was above a street dealer. He was an organiser and distributor of drugs to others who dealt in them. He was a common link. He arranged the transfer of drugs from his supplier, he distributed them to street dealers, and he made a profit from his endeavours. He was dealing not only for the purpose of supplying himself, but for the purpose of making some profit, although the exact amount is unknown.
Mr Carbone’s personal circumstances are that he is now 52 years of age. He came to Australia over 50 years ago. He worked in the fruit and vegetable industry. He married Anna Carbone, to whom he was married for 18 years. After his marriage failed, he developed an addiction to alcohol and drugs, which led to this offending. He suffered a severe cocaine addiction. It was put to the Court, and he is to be sentenced on this basis, that he has been drug-free since he was arrested for this offending in 2008. He was convicted in 1984 of cultivating Indian hemp and possession of Indian hemp for sale, for which he received a sentence of imprisonment. He has no other drug-related offending.
The appellant’s offending was serious. He was involved in numerous drug transactions with a number of other persons. He was a middle-level distributor of amphetamine and methylamphetamine.
In recent decisions of this Court for offences of trafficking in methylamphetamine, the Court has imposed a sentence of five years’ imprisonment in the case of a defendant who was in possession of four grams of methylamphetamine with a potential sale price of $80,000.[6] In another case, a defendant who was regarded as a middle-level dealer and who was in possession of 11 grams of methylamphetamine of low purity and 32.1 grams of ecstasy, received a sentence of seven years’ imprisonment.[7]
[6] R v Papadopoulos (2010) 108 SASR 124.
[7] R v Day [2009] SASC 84.
Rocco Carbone’s role can be characterised as being a person who was involved in managing a network of persons who were trafficking and dealing in methylamphetamine and amphetamine. The evidence established that he was organising the distribution of quantities of the drug to users and dealers at a street level, and that his role required organisational skills. General deterrence should be of paramount importance when dealing with persons who are organisers of the distribution of drugs to others who deal in them.
I consider that a starting point of ten years’ imprisonment for this offending is entirely appropriate. On the facts as the Judge found them, ten years’ imprisonment was a modest starting point. Further, the reduction on account of the late plea was, in my view, generous. Even having regard to the fact that some of the matters to which the sentencing Judge had regard should not be considered in determining the sentence, I consider that the sentence he imposed was well within the range of sentences for this level of offending. In my view, the sentence of nine years and three months’ imprisonment, with a six year non-parole period backdated to 9 February 2011 is an appropriate sentence.
I would, therefore, dismiss the appeal.
KOURAKIS J: I too would dismiss the appeals of Rocco Carbone and Kevin Allan Kirk for the reasons given by Sulan J.
I agree with the reasons given by Sulan J for allowing the appeal of Anna Maria Carbone.
STANLEY J:
Anna Maria Carbone
I agree with the reasons of Sulan J. I have nothing to add.
Kevin Allan Kirk

I would dismiss the appeal. I agree with the reasons of Sulan J. While the learned sentencing Judge fell into error for the reasons given by Sulan J, the sentence was nonetheless appropriate to the circumstances of the offending and the appellant.
Rocco Carbone
I would dismiss the appeal. I agree with the reasons of Sulan J. While the learned sentencing Judge fell into error for the reasons given by Sulan J, the sentence was nonetheless appropriate to the circumstances of the offending and the appellant.