R v Piccinato

Case [2019] QCA 123

SUPREME COURT OF QUEENSLAND

CITATION:

R v Piccinato [2019] QCA 123

PARTIES:

R
v
PICCINATO, David Andre Jules
(applicant)

FILE NO/S:

CA No 89 of 2018
DC No 2370 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 12 April 2018 (Devereaux SC DCJ)

DELIVERED ON:

21 June 2019

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2019

JUDGES:

Fraser and Morrison JJA and Boddice J

ORDER:

Application for leave to appeal against the sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of trafficking in dangerous drugs and one count of possessing things for use in connection with trafficking in dangerous drugs – where the trafficking involved the commercial sale of synthetic cannabis as “tea” through retail premises – where the applicant owned the business through which the “tea” was trafficked – where customers warned employees of the harmful effects of the “tea” – where two people died after using the drug, and others were admitted to hospital – where the applicant was sentenced to an effective head sentence of six years imprisonment, with a parole eligibility date set after serving 18 months – whether the sentence was manifestly excessive

R v Falconi[2014] QCA 230, cited
R v Harris[2018] QCA 7, cited
R v Heckendorf[2017] QCA 59, cited
R v Johnson (2015) 255 A Crim R 73[2015] QCA 171, cited
R v Leathers (2014) 147 A Crim R 137; [2014] QCA 327, cited
R v Tout[2012] QCA 296, cited
R v Verhagen; Ex parte Attorney-General (Qld)[2018] QCA 142, cited

COUNSEL:

R J Glenday for the applicant
J A Geary for the respondent

SOLICITORS:

Alexander Law for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of Boddice J and the order proposed by his Honour.

  2. MORRISON JA:  I have read the reasons of Boddice J and agree with those reasons and the order his Honour proposes.

  3. BODDICE J:  On 12 April 2018, the applicant pleaded guilty to one count of trafficking in dangerous drugs and one count of possessing things for use in connection with trafficking in dangerous drugs.  He was sentenced to an effective head sentence of six years imprisonment.  A parole eligibility date was set after he had served 18 months of that imprisonment.

  4. The applicant seeks leave to appeal that sentence.  The sole ground of appeal is that the sentence was manifestly excessive.

    Background

  5. The applicant, who was born on 3 November 1972 and had no criminal history, trafficked in synthetic cannabis between 3 October 2014 and 15 January 2015.  The trafficking involved the commercial sale of synthetic cannabis as “tea” through retail premises.

  6. The applicant operated five stores in various locations in regional Queensland.  The applicant did not physically…

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Details
AGLC
R v Piccinato [2019] QCA 123
Case
[2019] QCA 123
Decision Date

CaseChat Overview and Summary

The case of R v Piccinato involves an appeal against the sentence imposed on the applicant, who had pleaded guilty to trafficking in dangerous drugs and possessing things for use in connection with trafficking in dangerous drugs. The trafficking involved the commercial sale of synthetic cannabis, disguised as "tea", through retail premises owned by the applicant. The synthetic drugs caused significant harm, including the deaths of two customers and hospital admissions of others. The applicant was sentenced to an effective head sentence of six years imprisonment, with parole eligibility set after serving 18 months. The primary legal issue was whether the sentence was manifestly excessive. The court examined the nature and extent of the applicant’s criminal conduct, considering factors such as the sophistication of the operation, the harm caused, and the level of awareness and disregard for the dangers involved. The court concluded that the sentence was appropriate given the gravity of the crimes and the need for general deterrence.

The court highlighted several aggravating factors in the applicant's conduct. These included the commercial scale of the trafficking, the level of sophistication employed to conceal the illegal activity, and the significant harm caused to consumers. The court noted that the applicant and his associate had taken steps to avoid detection and had continued the sale of the drugs despite being aware of their harmful effects. The court also considered the precedent set in Verhagen, where a similar level of criminality warranted a sentence of four and a half to five years. Given the more substantial aggravating features in this case, the court found that a sentence exceeding that in Verhagen was warranted. The court ultimately determined that the sentence imposed was within the appropriate exercise of sentencing discretion and was not manifestly excessive.

In conclusion, the court found that the sentence imposed on the applicant was appropriate and not manifestly excessive. The court emphasised the need for a sentence that reflected the general deterrence required in cases involving significant harm caused by illegal drug trafficking. The court refused the applicant's application for leave to appeal against the sentence. The final order was that the application for leave to appeal against the sentence be refused.

Orders

Orders of the court

Application for leave to appeal against the sentence be refused.

Background

Background to the litigation

The synthetic cannabis was sold in small one gram bags. Each bag comprised green leafy material which had been sprayed with synthetic chemicals. It was estimated the turnover generated by the product in the trafficking period was in the order of $350,000.Statement of Facts The applicant was sentenced on an agreed statement of facts. Relevantly, it stated:(a)The synthetic drugs were packaged and distributed in the retail stores under the guise of being “tea”. The “tea” was sold under various names. Discounts were given to customers who purchased in bulk. It was not accessible to customers unless there was a specific request.(b)The applicant paid for the ingredients which arrived in 1 kg sealed bags. The ingredients consisted of green leafy material sprayed with synthetic chemicals. The “tea” was packaged at McGlone’s residence using a packaging machine purchased by the applicant and McGlone.(c)McGlone and another employee wore masks, gloves and goggles whilst packaging the synthetic drug. Exposure to the product had caused the employee to have headaches and a bad skin rash. McGlone and the employee undertook packaging of products approximately twice per week. Between 5,000 and 8,000 bags would be packaged at a time.(d)Customers were told the “tea” would not show up in drug tests. It was a popular product with customers employed in the mining industry. The Mackay store had the most sales, selling between 50 and 300 packets per day. The least sales occurred at the Bundaberg store. It sold between 1 and 50 packets on most days.(e)At one point, the applicant and McGlone assisted another dealer in New South Wales with packaging of synthetic cannabis through use of their machine.(f)During the trafficking period, the applicant and McGlone became aware that the product was dangerous to consumers and had to be recalled from sale. They made the decision to repackage the product and attempted to water it down with legal tea. At no stage did they organise any medical or chemical testing of that product.(g)Complaints were made by customers to store employees about the strength of the drugs and of adverse reactions caused by the product. Customers reported being unable to walk or talk for several hours, vomiting extensively and of falling unconscious. One customer warned the products were too dangerous to sell.(h)Employees who advised of these complaints were told the products were legal and that it must be teas from other competitors that were causing adverse reactions. Employees who expressed concerns about selling the “tea” were told they would lose their jobs unless they sold it.(i)Police investigations confirmed customers had had adverse reactions from the product including dizziness, vomiting, rashes, loss of taste, bleeding in the stomach and seizures. A total of 32 people presenting to the Mackay Hospital Emergency Department between 1 December 2014 and 20 January 2015 alone in connection with having smoked the product.(j)One regular customer was located deceased at his home on 13 January 2015. The cause of death was recorded as the toxic effects of synthetic cannabinoids. That customer had been admitted to hospital in November 2014 and placed in an induced coma due to issues with his kidneys as a result of smoking the product.(k)Another customer was admitted to the Mackay Hospital on 13 January 2015 after smoking the product. He was brain dead. On 14 January 2015, his life support was turned off. That customer obtained the product from the Mackay store on 13 January 2015. Again, the cause of death was the toxic effects of synthetic cannabinoids.(l)Forensic testing of bags of product located at the address of each of those deceased men determined that the bags were packaged from the packaging machine located in McGlone’s house.(m)Subsequent to those deaths, and after search warrants were executed at the retail stores and McGlone’s house, the applicant and McGlone attempted to contact staff to ensure they did not say anything incriminating about the synthetic drugs. The applicant also attempted to move the product from the Mackay store to a neighbouring store. The applicant and McGlone discussed getting rid of evidence on computers at the applicant’s address.(n)During the sale of the product the applicant and McGlone had also taken steps to avoid detection. A safe house in Rockhampton was used to stock reserves so that excess product was not kept in any store. The drugs were sold from under the counter and stored in locked cabinets in the back storerooms so that they were not visible to customers. Staff were told not to sell the products to people who asked for “synthetic drugs”. They were only to sell to known customers. When police had executed search warrants on other retail outlets in the area, staff were asked to remove the stock from the store and send it to a warehouse at Toowoomba.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Those particularly aggravating features of the applicant’s conduct substantially increased the nature of his criminality and highlighted the need for a sentence reflecting general deterrence. In Verhagen, this court observed that persistent illegal conduct engaged in for profit and motivated by pure greed with a level of sophistication designed to hide its unlawful activity, warranted a head sentence in the order of four and a half to five years imprisonment. The applicant’s more substantially aggravating conduct warranted a sentence in excess of that imposed in Verhagen.Conclusions The sentence imposed upon the applicant fell within an appropriate exercise of the sentencing discretion. The sentence was not manifestly excessive.Order I would order that the application for leave to appeal against the sentence be refused.

Ratio Decidendi

Legal Principle Established

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