R v Farrugia - [2018] SASCFC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FARRUGIA
[2018] SASCFC 73
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Doyle)
5 July 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS
Appeal against sentence.
The appellant was sentenced by a Judge of the District Court to four years and seven months’ imprisonment with a non-parole period of 22 months following his guilty plea to trafficking in a large commercial quantity of cannabis.
The appellant appeals on the grounds that the sentence is manifestly excessive and that the Judge erred in concluding that exceptional circumstances did not exist such that he could order suspension of the sentence.
Held: Appeal dismissed.
1. The sentence imposed is well within the available range of sentences for offending of its type.
2. There is nothing exceptional about the appellant’s offending and personal circumstances such that the sentence could be suspended under s 96 of the Sentencing Act 2017 (SA).
3. The sentence is moderate and the Judge did not err in not suspending it.
Controlled Substances Act 1984 (SA) s 32, s 33; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) reg 6; Firearms Act 1977 (SA) s 11, s 14; Sentencing Act 2017 (SA) s 96, referred to.
R v Standley [2016] SASCFC 141; R v Hucks [2016] SASCFC 92; R v Mustac (2013) 115 SASR 461; R v Young (2016) 126 SASR 41; R v Lyberopoulos [2017] SASCFC 139, applied.

R v FARRUGIA
[2018] SASCFC 73
Court of Criminal Appeal: Kourakis CJ, Bampton and Doyle JJ

KOURAKIS CJ: I would dismiss the appeal. I agree with the reasons of Bampton J.
BAMPTON J: Matthew Farrugia collected George Nikolic from the Royal Adelaide Hospital (“RAH”) at 8.45am on 2 September 2015. En route to the Calvin Grove Airstrip at Virginia, Mr Farrugia realised that he had become embroiled in an illegal activity. He stopped his van at Mr Nikolic’s request to collect 100 pounds of cannabis and then drove to Virginia. The cannabis was loaded, together with a quantity of a precursor, onto a waiting plane and flown high to Deniliquin in New South Wales. By late afternoon on 2 September 2015, Mr Farrugia, Mr Nikolic, and three others were arrested. They were subsequently charged with commercial drug trafficking offences.
Mr Nikolic died in mid-2017 before finalisation of the charges laid against him. Mr Farrugia was sentenced to four years and seven months’ imprisonment with a non-parole period of 22 months following his guilty plea to trafficking in a large commercial quantity of cannabis.
Mr Farrugia appeals his sentence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Farrugia

Details

AGLC: R v Farrugia [2018] SASCFC 73
Case: [2018] SASCFC 73
Decision Date: 5 July 2018

CaseChat Overview and Summary

Mr Farrugia appealed his sentence, granted permission by the court, on two grounds: that the sentence imposed was manifestly excessive, particularly due to a disparity with sentences given to co-offenders, and that the sentencing judge erred in finding no exceptional circumstances to warrant suspension of the sentence. The appeal was heard by Kourakis CJ, Bampton and Doyle JJ. The case concerned Mr Farrugia's involvement in a large commercial drug trafficking enterprise orchestrated by his then father-in-law, Mr Nikolic.

The central legal issues before the court were whether the sentence imposed on Mr Farrugia was demonstrably too severe, considering the sentences of others involved in the same criminal enterprise, and whether the specific circumstances of his case justified the suspension of his sentence. The court was required to assess the proportionality of the sentence and the existence of any exceptional factors that might permit a departure from standard sentencing practices.

The court dismissed the appeal, finding that neither ground was made out. In its reasoning, the court emphasised the primary and secondary purposes of sentencing as prescribed by the Sentencing Act, including community safety, punishment, accountability, denunciation, recognition of harm, deterrence, and rehabilitation. The court considered the non-parole period of 40 percent of the sentence length to be merciful and reflective of Mr Farrugia's limited role, lack of prior convictions, low risk of reoffending, and other personal circumstances. The court concluded that, in light of all the circumstances, the sentence was moderate and the judge had not erred in refusing to suspend it.

Orders

Orders of the court

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Background

Background to the litigation

Mr Farrugia appeals his sentence with permission on the following grounds:1.The sentence imposed is manifestly excessive. In particular, he complains that there is a disparity between the sentence he received and the sentences imposed on other co-offenders; and2.The Judge erred in concluding that exceptional circumstances did not exist such that he could order suspension of the sentence.Background to the offending In 2015, Mr Farrugia was in a de facto relationship with Mr Nikolic’s daughter, Natasha Nikolic. Mr Nikolic was the architect of a large commercial drug trafficking enterprise intercepted by South Australia Police (“SAPOL”) in 2015. Mr Nikolic was admitted to the RAH on 26 August 2015 and remained an inpatient until his arrest on 2 September 2015. Mr Nikolic suffered gangrene as a complication of his diabetic condition. He was advised during his admission that his leg was gangrenous and required amputation. As a result of his incapacity, he relied on others to drive him to appointments.Agreed factual basis for sentencing According to an agreed factual basis for sentencing, on 20 August 2015, Mr Nikolic, Nicholas Mavromatis, and John White met two undercover police officers at a café in North Adelaide (“the café”). During that meeting, it was agreed that Mr Nikolic would sell 100 pounds of cannabis to “George”, one of the undercover operatives who posed as a person involved in the drug trade from New South Wales. Mr White agreed to fly his private plane to South Australia to collect the cannabis and deliver it to “George” at Deniliquin in New South Wales. At a later meeting at the café on 26 August 2015 between Mr Nikolic, Mr Mavromatis, James Pitt, and the two undercover officers, the sourcing, sale and transportation of the cannabis to New South Wales was confirmed. The date for the operation was 2 September 2015. Mr Farrugia was not present at the café meetings in August 2015. The meetings were recorded by the undercover police officers and no reference is made in either of the recordings to Mr Farrugia.Telephone interceptions SAPOL obtained telephone interception warrants in relation to Mr Nikolic, Mr Mavromatis and Mr White. No warrant was sought or issued in relation to Mr Farrugia. 1 September 2015 – Mr Nikolic’s telephone requests to be driven to Virginia In the afternoon of 1 September 2015, Mr Nikolic called Mr Mavromatis and asked him to pick him up from the RAH the following morning because they needed to meet one of the undercover officers at 10.00 am. Mr Mavromatis was non-committal about collecting Mr Nikolic and said he would call him back. Mr Nikolic called Mr Mavromatis later that evening. It is evident from that intercepted conversation that Mr Mavromatis was not going to pick up Mr Nikolic, but that they would meet up later on 2 September. Mr Nikolic then called Mr Farrugia at just before 9.00 pm and asked him if he could pick him up from the RAH the following morning at 8.45 am. Mr Nikolic said that they needed to meet “boofhead”, go to Virginia and then go to North Adelaide. Mr Farrugia can be heard on the intercepted telephone call checking with Ms Nikolic about whether he could pick up his father-in-law as he had to drop off his children to school and childcare. Mr Farrugia only agreed to Mr Nikolic’s request after discussion with Ms Nikolic.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Neither ground of appeal is made out.Conclusion In sentencing Mr Farrugia, the Judge was obliged to have regard to the primary and secondary purposes of sentencing prescribed by the Sentencing Act. The primary purpose for sentencing Mr Farrugia is to protect the safety of the community. The secondary purposes are to ensure that he is punished, that he is held accountable to the community for his offending behaviour, to publicly denounce his offending, to publicly recognise any harm done to the community, to deter him and others from such offending and to promote his rehabilitation. The non-parole period of 40 percent of the length of the sentence is merciful and appropriately reflects Mr Farrugia’s role in the offending, lack of criminal antecedents, his low risk of reoffending and other matters personal to him. In all of the circumstances, I consider that the sentence is moderate and the Judge did not err in not suspending it. For the reasons given, I would dismiss the appeal. DOYLE J: I would dismiss the appeal. I agree with the reasons of Bampton J.

Ratio Decidendi

Legal Principle Established

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