R v De Fazio No. Sccrm-03-11

[2003] SASC 91

R  v  DE FAZIO
[2003] SASC 91

Court of Criminal Appeal:  Doyle CJ, Perry and Nyland JJ (ex tempore)

1. DOYLE CJ:            Mr De Fazio has applied for leave to appeal against a sentenced imposed by the District Court. A Judge of this Court refused leave to appeal. Mr De Fazio requested that the application be determined by the Full Court. The Court has ordered under rule 15(8)(b) that the application be heard in open court.

2. Mr De Fazio pleaded guilty to a charge of taking part in the sale of cannabis. Mr Sabatini pleaded guilty to the same charge. The amount of cannabis was 3.7 kilograms. The maximum punishment was a fine not exceeding $50000 and imprisonment for ten years or both.

3. The Judge would have sentenced the men to imprisonment for 3 years. Having regard to their plea of guilty, he reduced the sentence of imprisonment to 29 months for each of them and fixed a non-parole period of 16 months. He declined to suspend either sentence.

4. Mr De Fazio raises two grounds. He argues that his involvement in the offending was less serious than that of Mr Sabatini and accordingly he should have received a lesser sentence. He also argues that the Judge erred in not suspending the sentence.

5. He is 48 years of age. He had one conviction about 13 years ago for larceny. He has been in regular work during his adult life. He supports two children. His widowed mother relies on him. The Judge received references indicating he is a community spirited person.

6. It is true that Mr Sabatini played a greater part. He made arrangements for Mr Belbe to come from Queensland to Adelaide to collect cannabis. Mr Sabatini and Mr De Fazio were going to arrange the supply of cannabis to Mr Belbe. Police observations suggest that Mr Sabatini took Mr Belbe to several addresses to obtain cannabis, including Mr De Fazio’s house. Thus it does appear that Mr Sabatini played a more active part. Otherwise the offending was similar. Each man received $5500 for his part in the offending. Each man was directly involved in efforts to obtain cannabis. It was a kind of joint enterprise. Each man was sentenced by the Judge on the basis that the offending was committed against a background of ongoing commercial involvement in the sale of cannabis. The two men were working together to some extent. The difference in the parts they played was minor. The circumstances were not such that the Judge was obliged to differentiate between the two men. It is not always necessary to do so.

7. In my opinion it is not reasonably arguable that the Judge erred in this respect. To the contrary, it is arguable if he had drawn the distinction that would have been unwarranted.

8. Nor is it reasonably arguable that the Judge erred in not suspending the sentence.

9. The offending is serious. The amount of cannabis is significant. It is relevant the offence was engaged in for gain. The offence is a prevalent offence and this form of offending is prevalent. Deterrence is particularly important. Mr De Fazio’s personal circumstances might have provided a basis for suspending the sentence had the Judge thought that was appropriate, but it is not arguable that the Judge was obliged to suspend the sentence in a proper exercise of his discretion.

10. Nor do I consider it arguable that the Judge approached the discretion in the wrong fashion as a matter of law. For those reasons I would refuse leave to appeal.

11. PERRY J:               I agree.

12. NYLAND J:           I agree.

13. DOYLE CJ:            The order of the Court is that the application for leave to appeal be refused.