R v Fresiello - [2020] SASCFC 127

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FRESIELLO
[2020] SASCFC 127
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Blue)
23 December 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW
This is an application by the Director of Public Prosecutions for permission to appeal against the sentences imposed on the respondent for two counts of trafficking in methylamphetamine on the basis that the sentence imposed was manifestly inadequate.
The respondent pleaded guilty to the trafficking offences and related firearm offences. The sentencing Judge indicated that he would impose a sentence of two years and three months for the first trafficking offence after taking into account the sentencing discount. The Judge indicated that he would impose a sentence of four years and six months for the second trafficking offence, after discount. The sentences were to be served cumulatively. The Judge however imposed a single sentence for both offences pursuant to s 25 of the Sentencing Act 2017 (SA) of five years. In addition, the sentencing Judge imposed a term of two years and three months for the firearms offences, resulting in a total head sentence of seven years and three months. A non-parole period of three years and nine months was fixed.
The circumstances of the first trafficking offence were that the police attended the respondent’s residence on 4 September 2017 in response to a report of a suicide attempt. The respondent was taken to hospital and police searched the home finding 24g of crystal methylamphetamine. The circumstances of the second offence were that on 27 March 2019 police executed a general search warrant at the residence finding cash, a firearm and 11.4g of methylamphetamine. A further 536g pure methylamphetamine was discovered later in the search. The respondent was on bail at the time of the second offence.
The applicant contends that the sentence imposed was manifestly inadequate and the sentencing Judge erred in his application of the totality principle.
Held per Kourakis CJ (Peek and Blue JJ concurring), refusing permission to appeal:
1. If a mitigatory explanation is likely to be substantially rejected, if not supported on oath, the defendant should generally be put on notice.
2. Permission to appeal will rarely be granted if, to do so, will allow the prosecution a second opportunity to challenge a mitigatory account which it previously expressly or tacitly accepted, unless that account is inconsistent with sworn evidentiary material at trial which was before the Judge.
3. The sentencing Judge could not have had in mind that an accumulation of the indicative sentences would be crushing because the sentence for the firearms offence was imposed cumulatively. The sentencing Judge can only have had in mind that the trafficking offences were part of a single course of conduct.
Sentencing Act 2017 (SA) s 25, s 26; Supreme Court Criminal Rules 2014 (SA), referred to.
MJDH v Director of Public Prosecutions (SA) (2013) 116 SASR 180, applied.
The Queen v Perre (1986) 41 SASR 105; MJDH v Director of Public Prosecutions (SA) (2013) 116 SASR 180, discussed.
R v Fusco [2017] SASCFC 47; Law v Deed [1970] SASR 374; R v Lobban (2001) 80 SASR 550; R v Nemer (2003) 87 SASR 168, considered.

R v FRESIELLO
[2020] SASCFC 127
Court of Criminal Appeal: Kourakis CJ, Peek and Blue JJ

KOURAKIS CJ: This is an application by the Director of Public Prosecutions (the Director) for permission to appeal against the sentence imposed on 21 May 2020 on the respondent, Mr Fresiello, on two counts of trafficking in methylamphetamine. Mr Fresiello pleaded guilty to those offences and to offences of aggravated possessing a firearm without a licence, contravening the code of practice, possessing ammunition and possessing a sound moderator. The Director does not seek permission to appeal against the sentencing imposed for the firearm offences.
The first trafficking offence was committed on 4 September 2017. On that day, police attended at Mr Fresiello’s Murray Bridge residence in response to a report that the resident of those premises was attempting to commit suicide. They extricated Mr Fresiello from his car and conveyed him to hospital. The police then returned to and searched his premises where they found a container containing 24 grams of crystal methylamphetamine, a set of electronic scales, numerous plastic resealable bags, two tick lists and a cattle prod.
The second trafficking offence was committed on 27 March 2019 when Mr Fresiello was on bail for the first offence. Police, acting on suspicion that Mr Fresiello was supplying persons seen to frequent his premises with methylamphetamine, again searched his residence. They found a container containing 11.5 grams of crystal methylamphetamine. They also found $9,520 in cash, electronic scales, a cone piece, resealable bags, cannabis, flick knives and a cattle prod. An automatic machine gun, a loaded magazine, a silencer, and ammunition were discovered in the back yard.
The police seized Mr Fresiello’s mobile phone. On it they found messages consistent with him dealing in drugs. They also found a photograph, date stamped 25 March 2019, of a large amount of crystal methylamphetamine, and a set of electronic scales which indicated that it weighed over one kilogram.
A search of Mr Fresiello’s back yard on 28 March 2019 located 870.1 grams of a compound comprising 536 grams of pure methylamphetamine (the second trafficking offence).
The Judge indicated that he would impose a sentence of two years and three months for the first trafficking offence after reducing a notional sentence of two years and six months by 10 per cent on account of Mr Fresiello’s guilty plea, which was not entered until his first arraignment but before the commencement of a trial. For the second trafficking offence, the Judge indicated that he would impose a period of imprisonment for four years and six months after applying a reduction of 10 per cent to a notional sentence of five years on account again of his late plea of guilty. The Judge stated in his reasons that the indicative sentences should be served cumulatively.
Despite that indication of cumulative individual sentences, the Judge imposed a single sentence, pursuant to s 25 of the Sentencing Act 2017 (SA), of five years for both offences, explaining the reduction by reference to the principle of totality. By imposing that single sentence, the Judge effectively allowed the indicative sentences to be served concurrently save for a period of six months.
The Judge imposed a cumulative single sentence of two years and three months for four serious firearm offences. That sentence was reduced by 10 per cent from a notional sentence of two years and six months which the Judge would otherwise have imposed.
The Judge fixed a non-parole period of three years and nine months.
On the face of the offending, so far described, the indicative sentences which the Judge was minded to impose for each of the two offences of trafficking were manifestly inadequate, particularly because Mr Fresiello was on bail at the time of the second trafficking offence. The single sentence, imposed for both, was by reason of the substantial concurrence allowed by the Judge, so egregiously inadequate as to warrant the grant of permission to appeal sought by the Director. Moreover, by totality the Judge could not have had in mind that an accumulation of the indicative sentences would be crushing. This is because the firearms offences were imposed, in their entirety, cumulatively on the trafficking sentence. The Judge can only have had in mind that the trafficking offences were part of a single course of conduct, but they were obviously not so, even though both might be explained by Mr Fresiello’s continuing addiction. They were separated by Mr Fresiello’s arrest and release on the first trafficking offence and by a substantial period of time.
However, both the Director and the Judge appear to have accepted an explanation for the second trafficking offence which greatly mitigated it. That explanation was barely credible but explains and justifies what would otherwise be an egregiously low sentence. I would refuse permission to appeal. I elaborate on my reasons below.
Antecedents
Mr Fresiello was born in January 1980. He grew up in Murray Bridge. He lived with his mother after his parents separated. Mr Fresiello did reasonably well in primary school but truanted frequently in High School and was suspended for smoking drugs. His scholastic performance was poor and he left during year 11 to work at Coles in the fruit and vegetable department. He suffered relatively serious injuries in a car accident in 2000 but returned to Coles until his personal injuries damages claim was settled about three years later. He then worked for several years in a pizza shop operated by his brother, himself and his father.
In about 2014, Mr Fresiello commenced a relationship with R. He was by then a heavy user of methylamphetamine. R left Mr Fresiello because of his infidelity. Mr Fresiello became distressed, attempting suicide on several occasions. The first two attempts were planned drug overdoses. The third was the attempt to gas himself with fumes from his car which led to his arrest for the first offence. Mr Fresiello later complained that the police should not have gone into his house after finding him in the car.
In February 2020, Dr Raeside was asked to investigate Mr Fresiello’s mental competence. The following summarises matters set out in his report.
Mr Fresiello has a long history of substance abuse. He smoked cannabis from the age of 16 and methylamphetamine in his early 20s. He became a regular daily smoker of methylamphetamine to the point where he smoked a gram daily. He wasted his damages award of $330,000 on his addiction. Mr Fresiello was dependent on OxyContin following his accident. He continued to take more than he was prescribed for about 10 years. Eventually he overcame that addiction but his methylamphetamine abuse continued.
After the last of his suicide attempts, but before committing the second trafficking offence in September 2019, Mr Fresiello commenced a relationship with T. His relationship with T was, in Mr Fresiello’s terms, ‘toxic as she is a bad drug user as well’.
Dr Raeside excluded any major psychotic or other major psychiatric illness such as Schizophrenia, Bipolar Disorder or Major Depressive Disorder. Dr Raeside found Mr Friesiello’s behaviour to be ‘disturbed secondary to stress (and drugs)’. He diagnosed Mr Fresiello with a Substance Use Disorder and with a history which was suggestive of an underlying Mixed Personality Disorder with Antisocial and Borderline Traits. Dr Raeside concluded that Mr Fresiello was fit to stand trial.
Mr Fresiello has committed serious drug offences in the past. He was convicted of three offences of possessing cannabis in 2007. On 1 September 2011, he was convicted of selling a controlled substance for which he was sentenced to two years’ imprisonment which was suspended. In 2016, he was convicted and fined for cultivating cannabis. He also has a history of firearm offending. In 2010, he was convicted of possessing a firearm without a licence and supplying a firearm to a person who did not hold a permit. In January 2017, he was convicted of two offences of possessing a prohibited weapon. In November 2017, he was convicted of the offence of possessing a dangerous article and a prohibited weapon.
The second trafficking offence
On 27 March 2019, when police attended Mr Fresiello’s residence holding a general search warrant, Mr Fresiello was outside speaking to another police officer on an unrelated matter. The premises were owned by Mr Fresiello’s mother who occupied the main dwelling on the land. Mr Fresiello resided in a smaller dwelling. In Mr Fresiello’s residence, police saw two females and a male. On a chair which had been occupied by the male, Mr Mitchell, police located a square plastic container with a mixed substance weighing 17.1 grams of which 11.5 grams was later found to be pure methylamphetamine. Police also found $9,520 in the dining room of the premises. On being interviewed, Mr Mitchell denied any involvement with the methylamphetamine. On Mr Mitchell’s phone, police found messages between Mr Mitchell and Mr Fresiello consistent with Mr Mitchell acting as a go-between for Mr Fresiello in the sale of methylamphetamine. Mr Fresiello declined to answer any questions.
On the next day, police searched a workshop behind the dwelling and located a set of digital scales. In the rear yard, they found buried in a garden bed, plastic bags containing the mixed compound methylamphetamine weighing 853 grams.
Police intercepted calls made and letters written by Mr Fresiello whilst he was remanded in custody. In a letter dated 4 May 2019, Mr Fresiello wrote ‘I am sick of it and have been for a while I just wouldn’t get out. In a way, (a small way) it was a good thing this happening cos it’s my way out’.
Mr Fresiello also made an admission as to the gun, writing:
Would’ve been better to not be done with a gun (especially one that cost me 10 grand)[.]
Mr Fresiello acknowledged that he had been in ‘the game’ for over 20 years.
Sentencing Submissions
In the course of sentencing submissions, Mr Fresiello’s counsel advanced substantially mitigating explanations for the second trafficking offence. At a hearing on 21 May 2020, his counsel submitted that about six months before the methylamphetamine was found, Mr Fresiello was badly assaulted in his own home by the henchmen of a local drug dealer. He submitted that the purposes of the assault was to threaten and intimidate Mr Fresiello into dealing drugs for this drug dealer. He reported the offending to the police but nothing came of it, which is not surprising given that Mr Fresiello did not disclose to the police that the purpose of the assault was to pressure him into dealing drugs. Mr Fresiello’s counsel submitted that after the assault the drug dealer prevailed on Mr Fresiello to do no more than store the methylamphetamine which was the subject of the second trafficking offence.
The prosecutor informed the Judge that the prosecution did not accept that account. The Judge warned Mr Fresiello’s counsel that he could not accept it. That is not surprising. It is fanciful to think that a hardened drug dealer would trust such a valuable store of methylamphetamine with a methylamphetamine addict who also trafficked in the drug. Moreover, the prosecution evidence showed that Mr Fresiello had received 35 brief visits on the day before his arrest on the second trafficking offences and that many text messages on his phone were indicative of trafficking.
The Judge warned that Mr Fresiello would need to give some evidence about the matter. The sentencing submissions were adjourned.
On 31 August 2020, Mr Fresiello’s counsel provided a variation of Mr Fresiello’s account of his offending:
Moving to the large amount of drugs, it’s been treated in the charge as one total amount that was found inside the house and found outside buried. All of that had been part of a delivery to him for him to on-sell. He was doing that because of what had happened in the home invasion. I’ll come back to that. The person who was doing that knew about him having previously sold and used the drug. He was selling this drug. The money was the proceeds from his sale, probably represents the difference between about a kilo of the drug that was delivered and what was then found. The money was not to be retained by him but obviously to pay the person higher up in that chain and his proceeds, so to speak, was his ability to use the drug. So he was feeding himself at the end of the day and I’ll come back to his level of usage at this particular time which was significant and had been significant. Again, he accepts full culpability in respect to all aspects of that. He had buried the item outside himself and would access it from time to time. All of that is consistent with the phone messages and the knowledge in the local community that Mr Fresiello was a source of drugs.
He had done this for this person previously and it was in the context that this person was responsible for the home invasion. In other words, what had happened is this: that he had seen this person when he had been in the town, Murray Bridge. The person asked him to contact him via Facebook. He knew what was wanted because he knew from local suppliers and the like what this person was wanting him to do. Mr Fresiello had moved on from that sort of activity and he had a background of doing that in the past and didn't want to engage with that so he didn't at that point in time.
There was the home invasion. He reported it to the police, after five or six masked men at 3 a.m. in the morning, smashed windows, broke in and assaulted him - and he was with another occupier - assaulted him with a hammer on the head and he was taken to hospital by the police because they were called. He had some stitches in his head and he had a broken hand and released. He reported that there was another person present as well. He knew what that was, that was a threat to him. That's the nature of the industry and so rather than live in fear of that sort of conduct, he decided to take up what was being put to him. So it wasn't a voluntary act but he, nonetheless, accepted that he would be doing that and he had already moved some significant amount of material during the period from the home invasion in October until March. And this might be said to have been the third, I think, lot of supply but I don't think it was at the same level but it was still a significant level similar to this.
The account given from the bar table by Mr Fresiello’s counsel is somewhat improbable. The criminal lists of the courts of this State suggest that there is no shortage of addicts willing to sell drugs to support their habits. Resort to press‑ganging unwilling operatives is a fraught strategy for the upper echelons of any drug trafficking hierarchy.
Be that as it may, the prosecutor did not take issue with this account at all. The Judge did not give a warning along the lines of that given with respect to the earlier explanation and did not voice any concern about accepting this account (and did not remark adversely on it in his sentencing reasons).
This Court invited submissions from the Director and Mr Fresiello on the factual basis on which the application should be considered. The Director conceded that the application should proceed on the explanation given by Mr Fresiello.
Nonetheless, it is as well to revisit the obligations on counsel and the responsibility of sentencing judges to identify a sound factual basis before sentencing an offender. In The Queen v Perre[1] (Perre) King CJ explained: [2]
The sentencing judge is required ordinarily to sentence upon the basis of the sworn depositions or statements. If the defendant wishes to dispute any of the primary facts deposed to therein, he must do so by sworn evidence either at the preliminary hearing or before the sentencing judge. Where a defendant, while not disputing the primary facts deposed to, wishes the sentencing judge to sentence about the basis of a certain interpretation of those facts or upon a version of the defendant's role in the matter which may be in conflict with inferences from the primary facts which are open to the judge, he must make a decision as to the course which he wishes to follow. The defendant may give evidence or call evidence in support of his interpretation or version, or he may put it before the judge by way of submissions by his counsel asking the judge to act upon that interpretation or version. The prosecution may or may not make submissions accepting or opposing the interpretation or version put forward. The decision as to the basis upon which sentence is to be imposed is not, however, a matter for the prosecution but for the judge. I reject completely the suggestion which surfaced faintly on this appeal and has been made to the Court of Criminal Appeal in other cases, that the judge is bound to act upon the interpretation or version put forward by the defence unless it is disputed by the prosecution. It is for the judge to decide what inferences he will draw from the primary facts and to decide the basis upon which he will impose sentence. Even in cases in which the prosecution joins with the defence in asking for sentence to be imposed upon an agreed basis which differs from the depositions or from inferences which the judge may be disposed to draw from the depositions, it is for the judge to decide whether he is prepared to act upon that agreed basis.
There seems to be a misunderstanding abroad as to the respective roles of the judge and counsel in relation to the basis upon which sentence is imposed. It is for counsel to decide whether or not to call evidence. If counsel relies upon submissions from the bar table, it is not part of the ordinary role of the judge to indicate that he is not prepared to act upon those submissions so that counsel may decide whether to call evidence. A judge may do so, but he is not bound to do so. He may, and generally will, simply consider the depositions and the submissions and make his decision as to the basis of sentence. There will, of course, be exceptions. If counsel for the defence were to indicate that he refrains from calling evidence because he has reached agreement with the prosecution as to the basis upon which sentence should be imposed, the judge would be bound, generally speaking, to indicate that he is unwilling, if such be the case, to proceed upon the agreed basis, and to give counsel the opportunity of calling evidence. There may be other circumstances in which the defence can validly claim to have been misled. In general, however, neither the silence, or even concurrence, of counsel for the prosecution, nor the silence of the judge, will entitle counsel for the defence to assume that the judge will sentence upon the basis of his submissions (emphasis added).
[1] (1986) 41 SASR 105.
[2] The Queen v Perre (1986) 41 SASR 105 at 105-6; See also R v Lobban (2001) 80 SASR 550 at [17]-[18] (Martin J, with whom Mullighan and Bleby JJ agreed).

In MJDH v Director of Public Prosecutions (SA),[3] I emphasised the importance of warning a defendant that a mitigatory explanation will not be accepted in the absence of evidence on oath:
[17]A defendant’s onus to prove a mitigating circumstance deprives the often heard prosecution submission, that the defendant’s account cannot be disputed, of any meaningful utility. The question is not whether the prosecution has positive evidence to contradict that mitigating circumstances. As this case shows, and Bray CJ observed in Law v Deed, the prosecution will seldom have any such evidence. The question is whether the prosecution accepts the defendant’s account or instead requires the defendant to prove a matter in mitigation on the balance of probabilities.
[18]The dictates of procedural fairness play an important part in this aspect of sentencing procedure. A sentencing court should not, in the face of a challenge by the prosecution, or on its own initiative, reject a defendant’s explanation without according the defendant an opportunity to give evidence on oath in support of it. As Bray CJ explained in Law v Deed:[4]
Some stories which might appear incredible when related in oratio oblique by counsel, or for that matter by the defendant himself, become believable, or at least appear as if there is a reasonable possibility that they might be true, when related on oath in the box and after surviving the test of cross-examination.
Subject to the qualification with respect to the onus, that proposition remains sound.
(citation in original)
[3] (2013) 116 SASR 180.
[4] Law v Deed [1970] SASR 374 at 378.
In making those observations, I had overlooked the observations of King CJ in Perre. However, sentencing practice has changed substantially in the last three decades. Prosecutors generally expressly challenge submissions in mitigation which they consider to be improbable. Judges commonly alert defence counsel if they are unlikely to accept a submission from the bar table. Moreover, and with the greatest respect to decision in Perre, a higher standard is now demanded by the rules of procedural fairness. Accordingly, it should now be accepted that if a mitigatory explanation is likely to be substantially rejected if not supported on oath, the defendant should, as a general rule, be put on notice. Defendants should be ready, by way of anticipation, to support a mitigatory explanation on oath. If the prosecutor and the judge indicate that it is not necessary to give evidence on oath, the defendant will be sentenced on the factual basis outlined in the defendant’s submissions. There may be some cases in which limited aspects of a defendant’s explanation can be rejected without the need to forewarn the defendant because they are plainly contrary to sworn evidence or improbable.
In this case the failure to raise any concern over the explanation, as it was finally formulated, when Mr Fresiello had been expressly warned that his initial account would not be accepted, may have misled Mr Fresiello into thinking his final account was accepted. This was not a case in which the sworn material before the Judge was inconsistent with Mr Fresiello’s account so as to preclude the Judge from accepting it.[5]
[5] R v Nemer (2003) 87 SASR 168.
Consideration
I accept that the Director’s contention that the Judge erred in imposing a single sentence for both trafficking offences which allowed substantial concurrency despite the Judge’s indication that the sentences should be cumulative, stands independently of the problematic factual basis of the second trafficking offence. That is particularly so when, on the proferred explanation, the offences were quite separate criminal undertakings, the second trafficking offence only being committed because of the violence and threat of violence of Mr Fresiello’s supplier.
I have considered whether permission should be granted, the sentence set aside and the matter remitted to the District Court. On that remitter, the District Court would be free to review the factual basis on which Mr Fresiello should be sentenced. However, that would put Mr Fresiello in jeopardy of factual findings more adverse than the explanation proffered by him for a second time. Permission to appeal will rarely be granted if, to do so, will allow the prosecution a second opportunity to challenge a mitigatory account which it previously expressly or tacitly accepted, unless that account is inconsistent with sworn evidentiary material at trial which was before the Judge.
The accepted explanation for Mr Fresiello’s offending substantially mitigates the second trafficking offence. On that explanation this is not a case in which the offence was committed because of financial desperation or drug addiction alone. Offences generally, and drug trafficking in particular, are often committed for reasons of that kind. The need for general deterrence will therefore often outweigh personal circumstances of that kind which would otherwise lessen the offender’s personal culpability. Nor is this a case of a vague or otherwise speculative fear of reprisal, or even of mere verbal threats. Serious injuries were inflicted in the assault on Mr Fresiello.
I accept that it is arguable that, even on Mr Fresiello’s account, the combined sentence was manifestly inadequate but it is not obvious that it was egregiously so.
Close attention should be paid to the factual matrix in which a defendant falls to be sentenced. The acceptance of fanciful mitigatory accounts is often the root cause of public disquiet about sentencing standards and can frustrate the responsibility of this Court to maintain them.
Finally, I note that Mr Fresiello’s counsel opposed the grant of permission to appeal on the ground that the notice of appeal was not served on Mr Fresiello within the prescribed time.[6] It appears that a practice has been adopted by which a notice of appeal by the Director is sent electronically by the criminal registry of this Court to the prison in which a respondent is held. It is now not necessary to consider that ground. However, the practice of the Registry of this Court to assist with service will no longer be followed. It is the sole responsibility of the Director to arrange service on the respondent within the time prescribed by the Supreme Court Criminal Rules 2014, whether the respondent is in custody or not.
[6] See R v Fusco [2017] SASCFC 47 at [67]-[80].
In discharging that duty, the office of the Director should not assume that the solicitor acting for the respondent at the trial or the sentencing hearing has ongoing instructions to accept service. Moreover, having regard to the leisurely and uninformed approach of the responsible officer of the Department for Correctional Services in serving the notice of appeal sent by the Court, the Director may wish to make other arrangements for service to be effected.
Conclusion
The application for permission to appeal is dismissed.
PEEK J: I would refuse permission to appeal. I agree with the reasons of the Chief Justice.
BLUE J: I agree.