R v Mantese
[2002] VSCA 152
•12 September 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 33 of 2002
| THE QUEEN |
| v. |
| ANDREA MANTESE |
---
JUDGES: | PHILLIPS, CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 September 2002 | |
DATE OF JUDGMENT: | 12 September 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 152 | |
---
Criminal law – Sentencing – Attempt to possess a prohibited import – Manifest excess – Parity of treatment with co-offender – No demonstrable error.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Maidment, S.C. and Mr J. Cahill | Solicitor to Commonwealth D.P.P. |
| For the Appellant | Mr T.M. Forrest, Q.C. | Maurice Blackburn Cashman |
PHILLIPS, J.A.:
Vincent, J.A. will deliver the first judgment.
VINCENT, J.A.:
The appellant pleaded guilty before the County Court at Melbourne on 21 January 2002 to one count of attempting to obtain possession of a prohibited import, specifically a trafficable quantity of the substance known as ecstasy, which had been imported into Australia in contravention of the Customs Act (Cth) on or about 15 January 2002. This offence is punishable by the imposition of a maximum sentence of imprisonment of 25 years or a fine of $500,000 or both. A plea in mitigation of penalty was presented by counsel appearing on his behalf on 6 February 2002, and on 8 February a sentence of imprisonment of 3 years and 6 months was imposed upon him, with a non-parole period of 2 years being fixed.
Having been granted leave by a judge of this Court to do so, he now appeals against the sentence on what are essentially two bases. First, he asserts that the sentence imposed upon him was manifestly excessive in the circumstances and, second, that both the sentence imposed and the non-parole period fixed infringe the principles of parity when regard is had to the sentences imposed upon two co-offenders named Kerslake and Mitchell.
The background to the matter can be described relatively briefly. The appellant was at the time of the commission of this offence aged 35 years. He had no history of involvement with the criminal law. He was described by the sentencing judge as "a person of considerable talent" who had received training as a pastry chef and who had worked in the restaurant industry for most of his adult life. His Honour accepted that the appellant had developed renown as a chef in this State. This led in due course to the undertaking by him of two large enterprises at Sydney Airport, both of which unfortunately failed, creating a quite significant financial problem for him. It appears from his version of events, which the judge accepted,
that he needed an amount of $5,000, which was obtained from a person named Mutch. It had in fact been provided by Kerslake. The appellant was subsequently approached by Kerslake, informed that this was the case and told that Kerslake wanted his money. Payments of two amounts of $500 each were made. Then the appellant was told, he said, that he could have the balance waived by assisting Kerslake. At around this time the appellant had returned from attending his brother's funeral in Italy, and it was against that background, and with some reservations, that the sentencing judge formed the view that he may have been vulnerable to such an approach. Kerslake was eager to secure a conduit through which a quantity of ecstasy tablets that he desired to import into Australia could move. The appellant agreed that he would accept a package of some kind which would be forwarded to him by post, albeit addressed to a Mr Gray, on the basis that balance of the debt which was still outstanding would be waived.
On 30 June 2000, Kerslake, a citizen of the United Kingdom, arrived at Melbourne Airport. He took up residence in an apartment at Rockman's Regency Towers in Exhibition Street, Melbourne. After the securing of a telecommunications interception warrant in respect of Kerslake's mobile telephone on 30 July 2000, a week later a listening device was installed in those premises. Monitoring of telephone conversations which took place between 31 July 2000 and 15 August 2000 involving Kerslake, the appellant and their co-offender Mitchell disclosed that Kerslake was arranging for a postal article to be sent from the United Kingdom to Australia and that it was expected to arrive on either Friday 11 August or Monday 14 August. On 9 August, New Zealand Customs Service officers intercepted an international mail article addressed to R. Gray at a flat in Cowderoy Street, St Kilda, Victoria, the address of the appellant.
I should add at this stage that Mitchell was subsequently found by the sentencing judge to have performed a similar role in relation to an earlier transaction also organised by Kerslake, and he was at that time on bail in relation to that offence. He was the only person charged in respect of the earlier matter.
The postal article contained seven individually wrapped items and two unwrapped soft toys. One of the wrapped items was opened and found to contain a clear plastic video cassette box. This in turn held a quantity of ecstasy tablets. X-ray analysis of the postal items showed a total of three video cassette boxes, all of which contained tablets of similar appearance. The package was then delivered to the Australian Federal Police in Melbourne. Four of the wrapped packages in the postal article contained clothing and toys. Of the remaining three wrapped items, two contained a video cassette box each containing a quantity of tablets, whilst the third wrapped item held a cardboard box and also held tablets. Altogether, 4,984 tablets with a total net weight of 1,472.2 grams were retrieved. Later analysis established that the tablets contained a total of 4,784 grams of pure ecstasy. The tablets were substituted for other tablets containing more benign substances and a listening device was installed in the package. An attempt was then made to effect a controlled delivery of the parcel to the named recipient. However, this proved unsuccessful. A parcel delivery slip was left in the letter box of the address on the package advising that the item could be collected from the St Kilda Post Office.
At approximately 2 p.m. on 15 August 2000 the appellant was observed collecting the parcel and returning with it to his residence. Shortly thereafter he drove to the Regency Towers in Exhibition Street. Later, Kerslake and he were seen leaving the apartment occupied by Kerslake. The two men entered the appellant's vehicle and drove to another location in close proximity to the Regency Towers. They then re-entered that building and returned to Kerslake's apartment. At approximately 3.30 p.m., police who were monitoring the listening device installed in the package recorded the reaction of the two men when they ascertained that there had been a substitution of the tablets contained in the package and appreciated that they had been "busted". They left the apartment almost immediately and were arrested. The parcel was subsequently located on the floor of the apartment.
Following his arrest the appellant was interviewed by the police. He admitted that he was expecting to receive the parcel, which he said he suspected might have contained drugs or money. The sentencing judge described his state of mind in that situation as being “reckless”. I interpret that expression as intending to convey that the appellant accepted the parcel believing that it may have contained either drugs or money, but was indifferent as to which may have been the case. The appellant told the police that he became involved in this activity on the understanding that a debt of $4,000 that he owed to Kerslake would be waived if he collected and delivered the package.
Kerslake subsequently pleaded guilty to attempting to import not less than a trafficable quantity of ecstasy. He appeared on 22 March 2001 before the same judge who imposed sentence upon the appellant. After hearing a plea in mitigation of penalty presented on his behalf, his Honour on 30 March 2001 imposed on Kerslake a sentence of imprisonment for a period of 7 years in respect of which a non-parole period of 4 years and 6 months was fixed.
In support of his contentions that the sentence imposed upon the appellant was manifestly excessive in the circumstances and in any event infringed the principles of parity, his counsel Mr Forrest drew comparisons between the obviously different roles and levels of criminality of Kerslake and the appellant. Kerslake, he pointed out, was the organiser of the operation and a person clearly involved in the pernicious activity of drug trafficking. The appellant by comparison was a person of unblemished character to that time who may well have been in a vulnerable state and whose role, albeit significant, was nowhere near as important as that performed by Kerslake. With respect to Mitchell, Mr Forrest submitted that this co-offender was aware of the precise character of the operation in which they were all involved, whereas Mantese had only suspicions as to the contents of the parcel that he was to receive. Mitchell was to obtain possession of some of the drug itself for his own use, but also for distribution, whereas Mantese was to secure only the release of an existing debt for a relatively small amount of money. Even if the role of Mitchell in the transaction was minor, submitted Mr Forrest, his level of criminality must be regarded as extremely high when the fact that he was already on bail for his involvement in an earlier transaction of the same kind and involving Kerslake also was taken into account. Proper application of the principle of parity would have produced in the case of the appellant a sentence which reflected those differences, submitted counsel, and accordingly would have been less than that which was in fact imposed. He further contended that the considerations which related to this issue of parity also possessed relevance in the assessment by the Court of the possible manifest excessiveness of the sentence imposed upon the appellant.
Some reference is required at this stage to the findings of the sentencing judge when dealing with Kerslake and Mitchell. Kerslake, he found, was at that time 30 years of age and without means. It is reasonable, I consider, to interpret his Honour's sentencing remarks as indicating an acceptance by him of Kerslake's counsel's description of this offender as a tragic person who had led a hedonistic and drifting type of lifestyle and who was involved in poly-drug use, although it was not suggested that he suffered from any specific form of addiction. His Honour appears to have accepted that Kerslake appeared to have been in turn recruited by a person in the United Kingdom to arrange and effect the importation of ecstasy into this country. He was described for his own part as "an organiser in Australia" and his role as "pivotal" to the attempted importation and distribution of this material. The sentencing judge found that the motivation for Kerslake's involvement in the matter was the anticipated receipt of $20,000.
When subsequently imposing sentence upon the appellant, his Honour made it clear that he regarded the actions of Kerslake as "more criminally culpable" than those of the appellant. In this context he adverted to the fact that Kerslake was the organiser of the operation, that it was he who arranged the attempted importation and forwarded funds to enable it to occur. His Honour recognised that Kerslake was to gain financially substantially more than the appellant and that Kerslake recruited other persons such as the appellant, who were described by the judge as "fronts".
When sentencing Mitchell, his Honour described him as a courier who was prepared to allow his address to be used in order to effect the importation into Australia of the ecstasy concerned. His return was to be the receipt of ecstasy that he intended to consume to satisfy his own habit and also for the purposes of sale. In this context I should indicate that his Honour pointed out that Mitchell had assisted Kerslake by forwarding $15,000 on his behalf to persons in the United Kingdom.
It is evident from perusal of the judge's sentencing remarks in relation to the appellant that he accepted the appellant as a person of previously good character whose involvement occurred at a time when he may have been personally vulnerable. When dealing with the situation of Kerslake and Mitchell, the judge, in carefully reasoned sentencing remarks, directed, as he did in the case of the appellant, attention to all of the relevant sentencing principles and factual considerations applicable in each case. He correctly emphasised the serious character of the criminal enterprise in which all were involved, and he differentiated between them on the basis of what he regarded as their respective roles and the applicable personal considerations, including the criminal history of each and the prospects for rehabilitation of each. His Honour was appropriately mindful of the significance of general deterrence as a sentencing consideration in cases of this kind.
I am unable to detect any error in the manner in which he approached this aspect, or indeed any other aspect which might be seen to bear upon the sentence to be imposed upon the appellant.
With regard to the proper application of the principle of parity, the judge indicated that he considered "the requirements, concept and need for parity". Although he did not spell out in a clear fashion what he had in mind by this expression, there is nothing, in my view, to suggest that he fell into error in this respect. The sentence imposed on the appellant was, in terms of the head sentence and the non-parole period, half of that imposed upon Kerslake and significantly less than that imposed upon Mitchell, who was implicated in both offences. The judge, through his sentences, clearly intended to reflect the different roles, levels of culpability and personal circumstances. As here, it is seldom the case that those circumstances, roles and background material which are relevant to sentence will be
identical in each case. That is not what is involved in the notion of parity. What that notion primarily involves is the very simple concept that persons in relevantly like positions should be treated in the same fashion and that appropriate differentiation is required between those who are not.
I am unpersuaded that the differentiation of penalty between the offenders of the kind made, and in the circumstances of this particular matter, suggest the presence of any misunderstanding or misapplication of the applicable sentencing principles in this case. Nor do I consider that the sentence imposed upon the appellant, whether assessed by reference to the head sentence or the non-parole period, could be described as manifestly excessive in all of the circumstances.
I would dismiss this appeal.
PHILLIPS, J.A.:
I agree. Mr Forrest argued that the sentencing judge had failed properly to apply the principles of parity, the ground upon which he concentrated in oral argument by reference to three points of comparison: the sentence of 7 years imposed upon Kerslake for the offending in August, the sentence of 3½ years imposed on Mitchell for the offending in July and the sentence of 2 years imposed on Mitchell for the offending in August. He submitted as to the first that there should have been greater disparity than there was. As to the second, he argued that there should have been some difference in favour of his client, the appellant, given what Mr Forrest said was the larger involvement of Mitchell in the enterprise being arranged by Kerslake. As to the third, Mr Forrest argued that there should have been much less difference, given, as he put it, that the appellant's criminality was closer to that of Mitchell's in the August offending than to that of Mitchell's offending in July.
This morning we dealt with the Director's appeal against the sentence imposed on Mitchell for his part in events in August and rejected the argument that
the part played by Mitchell on that occasion was much the same as he played in the earlier offending in July. Mr Forrest made no submission to the contrary of this. Indeed, he built his argument upon the difference between the sentences as they stood.
Suffice it to say that, for the reasons given by Vincent, J.A., I am not persuaded that any of the arguments put in relation to the principles of parity in particular led to the conclusion that there was such error in sentencing as would justify our intervening. I express that conclusion by reference to the proper application of the principles of parity, but it is also the conclusion that I reached in relation to the argument concerning manifest excess. It is for those reasons that I join in his Honour's conclusion that the appeal should be dismissed.
CHERNOV, J.A.:
I am also of that view. In my opinion it is plain that, for the reasons given by Vincent, J.A., there is no relevant disparity between the respective sentences imposed on Kerslake and the appellant in respect of the August importation. The same applies to the sentences imposed on the appellant and Mitchell in respect of the August importation.
At first I had doubt whether the sentence imposed on the appellant in relation to the August importation was unduly high when compared with that imposed on Mitchell in respect of the July importation, given the differences in the personal circumstances of the two co-offenders as they were outlined by Mr Forrest, and Mitchell's interest in the drugs to be imported, some of which he was to receive and use personally for trafficking. I am satisfied, however, for the reasons outlined by Vincent, J.A., that the sentence so imposed on the appellant is not unduly high and that there is no relevant disparity between the two sentences in question.
I therefore join in dismissing the appeal.
PHILLIPS, J.A.:
The order of the Court is that the appeal be dismissed.
---
0
0
0