R v D'Amico

[2020] NSWDC 344

District Court

New South Wales

Medium Neutral Citation:

R v D’Amico [2020] NSWDC 344

Hearing dates:

27 March 2020

Decision date:

27 March 2020

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted.

The offender is sentenced to a term of imprisonment of 7 years comprising a NPP of 4 years and 6 months to commence on 13 May 2019 and to expire on 12 November 2023, and a balance of term of 2 years and 3 months to commence on 13 November 2023 and to expire on 12 May 2026.

To be released to parole on or about 12 November 2023.

Catchwords:

CRIME – Sentence - aid, abet, counsel or procure an attempt to possess a commercial quantity of a border controlled drug – offender’s role – seriousness of offence - specific and general deterrence – subjective matters

Legislation Cited:

Criminal Code Act (Cth) 1995

Crimes Act (Cth) 1914

Cases Cited:

R v Chen, Siregar, Ismunandar and Lau [2002] NSWCCA 174

R v Cheung Wai Man and Ors (NSWSC, 22 March 1991, unreported)

R v Nguyen, R v Pham [2010] 205 A Crim R 106

Wong v The Queen (2001) 207 CLR 584

Category:

Sentence

Parties:

Regina
D’Amico, Antonio

Representation:

Counsel:
Defence: Mr J Davidson

Solicitors:
Crown: Ms L Hancock
Defence: Mr A Herring

File Number(s):

2019/00106513

Judgment

1. Antonio D’Amico appears for sentence in respect of an offence that he did aid, abet, counsel or procure an attempt to possess a commercial quantity of a border controlled drug, 3.4 methylenedioxymethamphetamine (MDMA). That offence is contrary to ss 11.1(1), 11.2(1) and 307.5(1) of the Criminal Code (Cth). The maximum penalty provided is life imprisonment.

2. The offender was committed for sentence on 22 January 2020 at the Central Local Court. He is entitled to a discount on sentence for the utility of the plea and also for facilitating the course of justice. I will discount the sentence in the order of 25%, being slightly more to round the matter down to even years.

3. The facts are agreed and are as follows:

BACKGROUND

4. Antonio D’Amico is a dual citizen of Italy and Australia. He is a self-employed disc jockey.

5. Diego Ardimento is an Italian national who arrived in Australia in 2013 and is currently on a de facto visa which expires in June 2020. He is employed as a café manager.

6. Ardimento has been committed to stand trial with respect to the same offence as this offender.

THE CONSIGNMENT

7. On 11 March 2019, two air cargo consignments, purportedly consisting of water filters, arrived in Australia from Switzerland by the Deutsche postal service. The details of the consignor and consignee are as follows:

Consignor: Pierre Straub, CH Eduard Olivet 36, Geneve, Switzerland, Consignee: Frantz Carol, 33 Bent Street, Paddington, NSW, 2021.

8. On 12 March 2019, the Australian Border Force randomly selected the consignments for X-ray. Upon examination, each consignment revealed the following:

Consignment 1 contained three water filters

Consignment 2 contained nine water filters

9. Each water filter was deconstructed and found to contain a vacuum-sealed clear plastic bag with a brown crystal substance therein of approximately 500 grams each.

10. Forensic examination of the crystalline substance revealed the following.

• Consignment 1 contained 1.4933 kilograms of MDMA.

• Consignment 2 contained 4.4766 kilograms of MDMA.

• The total gross weight of the crystalline powder was 5.9699 kilograms.

• Forensic analysis revealed that the powder contained 3.4 methylenedioxymethamphetamine with a purity ranging from 73.5% to 77%, with an average purity of 75.79%.

• The calculated total pure weight of the drug was 4.5246 kilograms.

11. The threshold for a commercial quantity of MDMA is 0.5 kilograms.

12. On 15 March 2019, the consignments were seized by the ABF and handed over to the New South Wales police.

CONTROLLED OPERATION

13. On 15 March 2019, police substituted the drugs with an inert substance of similar weight, texture and appearance and repacked the respective consignments.

14. On 18 March 2019, the consignments were delivered by police to Paddington Post Office.

15. On the same day, police attended at 33 Bent Street, Paddington, the consignee address, and left a “Mail to Collect” card. The premises were empty and up for lease.

ORGANISING COLLECTION

16. On 27 or 28 March 2019, the offender D’Amico contacted Ardimento via a phone application, Pica, which is an encrypted file-sharing and messaging service, and said he needed a favour as he had to collect some parcels from a friend from the post office, but was not able to do it on time and that Monday (1 April 2019) was the last day to pick them up. The offender advised that he would provide Ardimento with paperwork on Sunday.

17. On 28 March 2019, telephone number 0434 760 186, subsequently used by the offender, was subscribed in the name of Desi Riceputi of 51 Bondi Road, Bondi. That location is a commercial property, being a Caltex service station.

18. On 29 March 2019, Australia Post left an urgent reminder “Mail to Collect” card at the consignee address.

19. On 30 March 2019, Ardimento contacted the offender via Facebook Messenger to find out details for the next day. The offender told Ardimento that they would meet later, but did not contact him again.

DAY OF COLLECTION

20. On 1 April 2019, Ardimento contacted the offender via Pica to arrange to meet. At about 10am Ardimento met the offender outside the Beach Road Hotel, Bondi, where the offender provided Ardimento with a letter of authorisation.

21. At about 1.06pm on the same day, Ardimento attended Paddington Post Office, enquiring about the consignment and presenting a typed letter of authorisation containing a photocopy of the consignee’s passport. An employee advised Ardimento that he needed an updated letter as the packages were not showing as being there at the post office. Ardimento told the employee that: “This could take a while, he’s in Bali”.

22. Ardimento called the offender and told him what had occurred.

23. At about 12.45pm Ardimento and a female, Cajsa Linderoth-Falke, attended the offender’s residence at 1/50 Waverley Street, Bondi Junction. The offender was observed on CCTV holding the Australia Post delivery card.

24. At about 1.01pm the offender, using the mobile telephone subscribed in the name of Desi Respudi, called Australia Post to enquire about the consignments. The caller provided the operator with the two consignment numbers and the consignee details. The telephone operator advised the caller that the package would be marked ‘Return to Sender’ if not picked up the following day. The caller told the operator that he was not in the country but had a friend who would come and collect the package today, and that he had provided him with a letter of authorisation. The caller further stated that his friend had been into the Paddington Post Office and was told that one of the packages was at the Alexandria Post Office. The operator advised that the packages were now both available and there was an issue with tracking numbers and a new letter of authorisation with the correct tracking numbers was required.

25. At about 1.29pm Ardimento and Linderoth-Falke departed the premises.

26. The offender was in the Paddington area at 1.49pm. Following this, at 1.53pm, the offender was at Bondi Junction North.

27. At about 2.33pm, Ardimento returned to the Paddington Post Office with Linderoth-Falke. He had returned with the “Mail to Collect” card and a handwritten letter purporting to be from Frantz Carroll giving him authorisation to collect both consignments.

28. The consignments were provided to Ardimento and he signed for them by electronic scanner with the signature D. Ardimento, the surname being spelt however A-R-D-O-M-N-T-O.

ARREST OF ARDIMENTO

29. At about 2.50pm, investigators arrived in the vicinity of the Paddington Australia Post Office. They immediately saw Ardimento and Linderoth-Falke walking along Oxford Street directly outside the Post Office. Ardimento was carrying both consignments.

30. Ardimento and Linderoth-Falke were both arrested; Ardimento initially resisted arrest and pushed out at police. He was taken to the ground and handcuffed. Each was cautioned and the consignment secured.

31. Without prompting, Ardimento said words to the effect:

“What’s in there, what’s in there, it must be drugs, I don’t know, I am just so scared”.

32. Ardimento and Linderoth-Falke were conveyed to Waverley Police Station and informed of their rights. Linderoth-Falke was released without charge. Ardimento participated in a forensic procedure by way of both buccal swab and photographs.

33. The offender was later recorded at Warringah Mall, Brookvale, Dee Why and then Hornsby.

RECORD OF INTERVIEW ARDIMENTO

34. On the same day, Ardimento participated in a recorded interview with police in which he stated the following:

• His friend D’Amico had asked him to collect a parcel that he was unavailable to collect himself.

• He met up with D’Amico twice on the day of delivery to obtain the necessary paperwork.

• D’Amico first met him at Beach Road Hotel and attended in a white car.

• He attended the Post Office for the first time at about 12.00pm.

• The paper he obtained from D’Amico was wrong.

• The Post Office told him that one of the parcels was at Alexandria Post Office.

• He was told something about the numbers being different.

• He called D’Amico and told him.

• He stopped in at D’Amico’s house on the way.

• D’Amico called to see where the parcel was.

• D’Amico told him to return as the parcels were there. He attended the Post Office for the second time and collected the parcels.

• He had no clue what was in the packages.

• He expected to smoke a joint with D’Amico in return for the favour.

• He was scared when he saw police.

• He had previously bought drugs from D’Amico.

• He buys drugs from D’Amico via any platform and D’Amico asked him to use Wika predominantly.

EXECUTION OF SEARCH WARRANT - PREMISES OF D’AMICO

35. On 4 April 2019, investigators conducted checks on D’Amico’s telephone number 0468 406 760. Call charge records revealed that the number had been inactive since 1 April 2019. The last cell tower location was in the Hornsby area north of Sydney.

36. On the same day, investigators executed a search warrant at 1/50 Waverley Street, Bondi Junction, a property rented by D’Amico and another person. No one was home at the time.

37. During the execution of the search warrant, investigators seized a number of exhibits, including

• 113.98 grams of cannabis.

• Substances known to be used as cutting agents.

• $2,800 AUD cash (56 x $50 notes).

• Digital scales.

• Apple laptop, and

• Other electronic devices.

38. Investigators inspected the Apple laptop belonging to the offender and observed the following:

• A search history on 1 April 2019 with the search term of “Paddington Post Office”.

• Email from Roads and Maritime Services registration for a white Toyota Camry, AW 04 YJ.

• Email of an insurance policy and receipt for a Toyota Camry Altise.

ARREST OF D’AMICO

39. On 5 April 2019, the police were unsuccessful in locating the offender and obtained an arrest warrant from the Waverley Local Court.

40. On 13 May 2019, the police were contacted by the offender’s legal representatives, following which the offender attended Surry Hills Police Station with his legal representative.

41. The offender was arrested by police, cautioned and searched. He was then informed of his rights. Police offered him the opportunity to participate in a recoded interview, but he declined, as was his right. The offender participated in a forensic procedure by way of buccal swab and photographs.

DRUG VALUE

42. The street value of the MDMA was about $70,000 per kilogram, accordingly the street value of the impure quantity of 6 kilograms was $420,000 and the pure quantity of 4.5 kilograms was $315,000.

43. The wholesale value of the MDMA in New South Wales was about $35,000 to $40,000 per kilogram, accordingly the wholesale value of the impure quantity of 6 kilograms was between $210,000 and $240,000 and the pure quantity of 4.5 kilograms was between $157,500 and $180,000.

44. [I note in relation to the items referred to at para 35 of the facts (para 37) that there is no charge before the Court, and in relation to the valuation of the drug as referred to in paras 42 and 43, that although the Commonwealth legislation only prohibits the import of the pure drug, it is unlikely that a person dealing with an imported impure drug after its importation would process it to obtain the pure quantity for the purpose of supply. Accordingly, the higher figure of the impure quantity is more relevant even though it is only the pure quantity that is prohibited.]

45. As indicated, the offender did not participate in a record of interview but has provided on sentence a statement and has given evidence adopting the statement as true and correct. In his statement, and as adopted by his evidence, he was asked by his drug supplier to collect the MDMA from the post office on the basis that a drug debt of $6,000 owed by him to his supplier would be waived.

46. The drug was sent from Switzerland; there is no evidence as to the offender having any role in relation to its being sent into Australia. There is also, however, no evidence of any person having any more significant role to play in relation to the importation than the offender. The quantity was approximately nine times the threshold for a commercial quantity.

47. In relation to the attempted collection of the border-controlled drug MDMA from the post office, it was the offender who had the major role in the sense that he arranged for another to collect it in order to no doubt distance him from the collection. He provided to the collector the mail collection card and a typed authorisation letter purporting to be from the consignee. He also communicated on the day of collection with Australia Post to facilitate the release of the parcels to Ardimento. In doing so, he contacted Australia Post using a mobile number subscribed to an unknown person at a commercial address within walking distance of his residence. That mobile number had been subscribed to on 28 March 2019, which was several days before the attempt to collect the parcels.

48. Clearly, the offender in those circumstances, despite his suggestion that he was only suspicious as to the parcels containing drugs, was aware that the enterprise was to collect drugs. He claims he was doing it on behalf of his drug supplier and that he was going to receive a benefit worth $6,000 for what might in ordinary circumstances take perhaps an hour to do. He was alert enough to what he proposed to do to persuade someone else to do it on his behalf and also must have known that the authorisations were false.

49. In relation to the obtaining of the parcels from the post office, his role was crucial. He was clearly, if taking part on behalf of some other or others, trusted to play a significant role in the importation. It is in the circumstances not possible to assign some descriptive term to his role, and I will deal with him on sentence on the basis of what he did: that is, that he played a very significant role in relation to collecting the MDMA and arranging for it to be done by another equipped with relevant false documentation provided by him.

50. In my view, that is a significant role. An offence involving the importation into Australia of 4.5 kilograms of pure MDMA is objectively a very serious offence, although, noting of course that there is no limit to a commercial quantity and it is frequently the case that matters coming before the Court in relation to border controlled drugs being imported relate to far more significant quantities.

51. Quantity is not the be all and end all in terms of evaluating the seriousness of an offence, but it remains a significant factor to take into account, as referred to in Wong.

52. I accept the Crown submission that the offender’s conduct in this matter falls into the middle range of objective seriousness for this type of offending.

53. To the extent that the offender would financially benefit from the importation, the only evidence is a self-serving statement that a drug debt of $6,000 would be forgiven. However it remains that the offender acknowledges that he was participating for a financial benefit whatever that in fact may have been. I say that as when the offender gave evidence on sentence I was unimpressed as to the veracity of his evidence. He noted in his evidence that his parents had suffered a number of deleterious effects, and including particularly his father, and stated that he ‘felt bad’, ‘I let him down’, ‘I would do anything to make it better’, and indicated that he would ensure that he would not let his parents down in future.

54. It is unfortunate that he did not take into account the likely effect of his criminal offending on his parents before he conducted himself in the manner he did. He might have alleviated to some degree the stress and adverse effects on his parents by offering to assist the prosecution and providing information as to any other person involved and/or offering to give evidence against any such persons. It is of course entirely within his own ability to have taken an alternative course which would have alleviated the sentence to some degree, perhaps reducing the stress and harm to his parents.

55. It is regularly the case before courts in relation to criminal offending that offenders are reluctant to provide information and/or give evidence in relation to other persons involved in their criminal offending for the very good reason that it often results in adverse consequences for them when a sentence of imprisonment is imposed, or even if not imposed, in the community when those they have assisted against learn of their activity. It is in those circumstances entirely understandable that an offender will ordinarily be reluctant to take the course of assisting the prosecution in relation to others. There is no additional penalty for doing so. What it means, however, is that there can be no amelioration of the sentence on the basis of assistance having been provided or to be provided in the future. That applies in this matter.

56. It would appear from the facts that the offender was at least aware shortly after the arrest of Mr Ardimento and Ms Linderoth-Falke that the collection of the MDMA had failed. Eventually, five weeks after they had been arrested, he surrendered himself at the Surry Hills Police Station.

57. He must have by that time been aware not only of the arrest of Mr Ardimento but also of the fact that his premises had been searched subject to a lawful search warrant. In the circumstances, in my view, his surrender to the police was in effect an acknowledgment of his recognition of the inevitable, but it at least did facilitate the course of justice. I also take that and the fact that he entered a guilty plea in the Local Court as indicative of remorse and contrition even though such a conclusion does not automatically follow from those circumstances.

58. As to subjective matters, the offender was born in Venafro, Southern Italy, on 15 November 1994. He is now some 25 years of age. He has one sibling, being a younger sister. His parents reside in Italy.

59. He completed his formal schooling in Italy and in high school specialised in business and accounting courses as professional specialisation is permitted in high school. He finished school at the age of 18 years with a high school diploma.

60. Following school he was trained in ice cream manufacturing and shortly after completing his training he moved to Australia in December 2013.

61. He became an Australian citizen in March 2014.

62. He had commenced using prohibited drugs when he was at school, at the age of 16 using marijuana and cocaine mostly. Before moving to Australia in 2013, his use of prohibited drugs had increased and in family discussions it was decided that he should move to Australia to distance himself from his peer group in order to address his drug problem. According to the offender for two years after he arrived he did not use prohibited drugs. He arrived on a tourist visa and shortly after his arrival he was able to apply for Australian citizenship because his father was an Australian citizen. He resided with his uncle Armando D’Amico and his grandmother at a house in Brighton. His uncle has given evidence on sentence and has indicated that in his view his nephew was not using prohibited drugs when he first came to Australia.

42. Once he had become an Australian citizen, he was able to work in his uncle’s pastry shop in Randwick. He later obtained work in a company called Messina manufacturing ice cream.

43. In June 2015 he took a month long holiday and returned to Italy. However, while there he met up with his old peer group and again started using prohibited drugs, in particular marijuana and cocaine.

44. When he returned to Australia he continued his use of prohibited drugs. Although he returned to employment he had some problems in relation to his driver’s licence being suspended and ended up with his employment being terminated in August 2015.

45. He then obtained a job at an ice cream parlour in Watsons Bay and after three months was promoted to store manager. He worked there for almost a year but his consumption of marijuana was increasing and he started making small sales to his friends to support his own habit. He indicates in his statement that his use became severe and his life was then spiralling out of control, with him being unable to manage his addiction.

46. His uncle became aware that he was again using prohibited drugs and eventually evicted him.

47. He quit his job at Watsons Bay in about May 2016 and has generally been unemployed since that time except for some casual jobs at a pizza restaurant and as a removalist.

48. He has had the benefit of ongoing financial assistance from his parents who were not aware that he had returned to the use of prohibited drugs.

49. He was, however, on the basis of the financial assistance provided by his parents and the fact that he was selling more marijuana to support his addiction, enjoying what he refers to as an ‘expensive lifestyle’.

50. However he claims to have built up a debt with his drug supplier of about $6,000. In his statement he said:

“I was not aware of the parcels until I was contacted by my supplier and asked by him to collect the parcels from the Paddington Post Office. I knew no more about the parcels or their importation than what my supplier told me as set out in the statement of facts. My supplier gave me the details of where to collect the parcels from and documents to use to collect them. My supplier told me that if I helped him to collect the parcels he would waive my outstanding debt of $6,000.

At that time I suspected what the parcels contained and I did not wish to be directly involved so I contacted my co-accused Diego Ardimento and asked him to collect the parcels for me. I gave Diego the documents to collect the parcels that had been given to me by my supplier. I understand that he collected the parcels and was then subsequently arrested”.

72. As I have already referred to, in my view, considering the particular circumstances of what the offender did in relation to the collection of the parcels, it is impossible that he simply suspected that they might contain prohibited drugs or border controlled drugs, but was aware that they would, even if he was not aware of the particular drug or quantity. It is in that regard in particular that I do not regard the offender as having been frank with the court.

73. He has been in custody since his arrest on 13 May 2019. His evidence is that while in custody, although it is possible to obtain prohibited drugs, he has not engaged in such use and in effect now regards himself as having conquered his addiction. It is well known to the courts that while one would hope that the prison environment is free of prohibited drugs that that is not so. I note the offender has no criminal history and that the New South Wales Department of Corrective Services “Conviction, Sentence and Appeals Report” indicates as of 13 March 2020 that he has had no disciplinary matters in relation to breach of prison regulations. I accept that he has managed to refrain from the temptation in custody to use prohibited drugs which I accept are available.

74. His uncle, Mr Armando D’Amico, has given evidence on sentence in support of the offender. I accept that he has given an honest account of his beliefs in respect of the offender, which included that he did not expect that the offender would return to the use of prohibited drugs in the future. I accept this is his genuine view, although considering the frequency with which those who use prohibited drugs return to court, in my view it is a somewhat naïve view. However, I note that there is a Sentence Assessment Report which refers to the offender as being a low risk of reoffending. I am prepared to accept in the circumstances of his lack of criminal history, despite the fact that on his own statement and evidence he has been a user of prohibited drugs for many years, that there is at least a reasonable prospect that he will not reoffend. Should he return to the use of prohibited drugs at all he would, by doing so, be reoffending, and in my view, be highly likely to return to being involved significantly with prohibited drugs as he has in the past to support his lifestyle. I will however give him the benefit on sentence of finding that he is of a low risk of reoffending and that there is a reasonable prospect of rehabilitation providing he can adhere to his determination not to use prohibited drugs. I note that he will have the benefit in the future of support from his uncle as well as his parents who I note are here today but in the light of the COVID-19 virus have unfortunately been prevented from actually entering the court complex, having recently travelled from Italy to support their son.

75. In relation to his family circumstances, there will of course be some difficulties in being removed from his parents, who continue to reside in Italy, in relation to serving a sentence, which is acknowledged on his behalf as being inevitable. However, he has the benefit of his uncle in Australia and his parents can clearly afford on occasions to come to Australia, having, since his arrest in 2019, come to Australia on two separate occasions to offer their support. I have no doubt, even in the absence of any direct material from them, that they will continue to do their best to support their son in the future and to encourage him to adopt a law-abiding lifestyle.

76. Section 16A(2)(k) of the Crimes Act (Cth) emphasises that the primary obligation of the Court is to:

“Impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence…ensure the person is adequately punished for the offence”.

77. Both specific deterrence and general deterrence are important in relation to matters such as this.

78. In R v Nguyen, R v Pham [2010] 205 A Crim R 106 Johnson J, with Macfarlan JA and RA Hulme J agreeing, re-stated the relevant principles in respect to this aspect of sentencing at [72]:

“The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case”.

79. That is a principle that has been long recognised in relation to offending of this nature.

80. The importation of prohibited drugs into Australia constitutes a deliberate threat to the wellbeing of the Australian community. In Chen, Siregar, Ismunandar and Lau [2002] NSWCCA 174, the court, composed of Heydon JA, Sully and Levine JJ, quoted with approval the observations of Sully J in Cheung Wai Man:

“In the face of such challenges each of the institutional supports of our society has a role to play. That of the courts is to punish and deter according to law. Obviously, the courts alone cannot meet adequately, let alone defeat, the challenge of which I have been speaking. What the Courts can do is punish drug-related crime in a way which signals plainly to drug traffickers, especially foreign drug traffickers, that the courts are both able and willing to calibrate their sentences until a point is reached at which, to a significant extent even if never perfectly, fear of punishment risked will neutralise the greed which is the only possible motive of those who…engage in drug-related crime…”

81. I have taken all of the matters to which I have referred into account in determining a sentence in relation to this matter. As I have previously indicated, there is no dispute that a sentence of full-time imprisonment is appropriate. So much has been conceded, appropriately, on behalf of the offender. And in view of the offender’s role the serious nature of the offence itself and the quantity, a significant sentence must be imposed to reflect both specific and general deterrence.

82. Accordingly, the offender is convicted of the offence of aiding, abetting, counselling or procuring in the attempt to possess a commercial quantity of a border controlled drug, being MDMA.

83. I have taken into account the fact that such offences are regarded very seriously by the legislature, as a commercial quantity has a maximum sentence of imprisonment of life provided and a pecuniary penalty of 7,500 penalty units or $1.35 million. I have applied slightly more than the 25% discount that I previously referred to in order to round the matter down from its starting point and I have similarly rounded down slightly the non-parole period that I would have otherwise applied.

84. The term of sentence will be a non-parole period of four years and six months commencing on 13 May 2019. I make a parole order for his release on or about 12 November 2023. The balance of term is two years, six months. That is, expressed more clearly, a sentence of seven years with a non-parole period of four years, six months commencing from the date of his arrest, 13 May 2019. The total sentence will expire on 12 May 2026.

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Decision last updated: 21 September 2020