R v Riviezzi

[2024] NSWDC 673

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Riviezzi [2024] NSWDC 673
Hearing dates:	15 November 2024
Date of orders:	15 November 2024
Decision date:	15 November 2024
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	See para [35].
Catchwords:	CRIME – SENTENCE – Knowingly take part in supply of prohibited drug – Large commercial quantity of cocaine (3.164kg) – Remorse shown – Good prospects of rehabilitation – Low to moderate prospects of recidivism – Special circumstances found.
Legislation Cited:	Drug Misuse and Trafficking Act 1985, s25(2).
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Sentence
Parties:	Crown – R (NSW) Offender – Robert Riviezzi
Representation:	Counsel: Crown – Mr Betts, L. (Solicitor) Offender – Mr Pace, D. Solicitors: Crown – Office of the Department of Public Prosecutions (NSW) Offender – Krayam & Co Lawyers
File Number(s):	2023/00164834
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: Roberto Riviezzi stands for sentence as a consequence of pleading guilty to a charge that on 23 May 2023, at Coffs Harbour he knowingly took part in the supply of a prohibited drug, namely cocaine in an amount of 3.164 kilogramss, being an amount not less than the large commercial quantity for that drug. That is an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is life imprisonment. The matter carries a standard non-parole period of 15 years which non-parole period I would need to impose if the offender had pleaded not guilty, was found guilty after trial and the case was in the mid-range of objective seriousness.

2. On 23 May 2023, at about 6.50pm police stationed at Coffs Harbour pulled over a vehicle being driven by the offender along the Pacific Highway on the south side of that town. He was driving a white van. The police stopped the offender on suspicion that he was carrying prohibited drugs. When he was pulled over, he alighted from the van and the police asked him some questions, informing him that they were going to search the van.

3. In answer to what the police said, the offender said that the van was a company car and that he was an electrician, which was correct. The offender told the police he was travelling from Sydney to Cavill Avenue in Surfers Paradise to do some work at a jewellery shop commencing on the following day. Police then searched the van. Consistent with what the offender had told them it was set up as an electrician's van containing tools, electrical equipment and products used by electricians. Nothing of interest was found in the front and rear sections of the van. The van had, however, been fitted with a subfloor which was not an original feature of the vehicle. Towards the rear of the van were two pull-out drawers for storage. Police investigated the area further and cleared the rear of the van and removed the shelving unit and carpet. Underneath the carpet police found a hinged door. The door could be hydraulically opened with a switch that had been wired into the car. Police asked the offender if he knew about the hinged door and he replied, "No comment."

4. When the door was opened police discovered a white plastic Woolworths shopping bag attached to a strap. Police pulled on the strap and retrieved the Woolworths bag. It contained a second bag inside which were large rectangular shaped objects wrapped in black plastic. One of those black plastic packages was labelled Bugatti. Police then cautioned and arrested the offender on suspicion that the items were bags of prohibited drugs. The offender was also asked about the contents of the bag but exercised his right to silence. Two mobile phones were then seized from the van. Nothing of interest was found on the mobile phones. The offender was then transported to Coffs Harbour Police Station and gave a buccal swab but exercised his right to silence when asked if he would participate in an electronically recorded interview. The packages found within the Woolworths bag were tested which resulted in a combined total of 3.164 kilograms of cocaine. The purity of the drug ranged between 20% and 24%.

5. There was then an examination for DNA and fingerprints conducted on the Woolworths bag and its contents. The various investigations are set out in six numbered paragraphs in the agreed facts. A DNA swab of the inner Woolworths bag handle showed a mixed DNA profile. The DNA profile of the offender could not be excluded as a contributor. There was a further DNA swab of an exterior handle of the outer Woolworths plastic bag that again returned a mixed DNA profile, but the profile of the offender could not be excluded as a contributor. Fingerprint analysis gave no fingerprint marking for the offender.

6. The offender has been in custody ever since. Although he was arraigned this morning it is common ground that he pleaded guilty in the Local Court at the earliest available opportunity and is entitled to a discount of 25% of the proper sentence to be passed upon him because of the utilitarian value of his plea.

7. At the time of his offending the offender was addicted to drugs. He had run up a drug debt. He admits that. To obtain money with which to discharge his drug debt and perhaps to continue to fuel his drug habit he had agreed to transport the 3.164 kilograms of cocaine from Sydney to Queensland. There is no evidence that he had previously done any such thing. The DNA findings are consistent with the offender's not having done the inner packaging for the drugs. Other DNA results showed that there were other people involved. The offender's DNA results only show that he had had handled the exterior Woolworths bags and interior Woolworths bags into which the drug packages had been placed.

8. In his affidavit sworn on 31 October 2024 the offender said this at [22]:

"I understand that the amount of drugs was large. At the time I didn't have any involvement in packing them. I was just given them to pick up and drop off. I accept by my plea of guilty that I knew there was a large amount of drugs but I didn't know the actual weight nor type of drug. I realise these drugs can have a bad impact on the community. I owed a lot of money as I was using a lot of drugs and I felt as though this was my only option to pay my debt."

9. In the following paragraphs the offender said things which indicate remorse and what the Court always seeks, insight into the impact of the offending. The offender said this:

"[23] I have witnessed firsthand what drugs can do to people and families through my own experience and through the experiences of others in gaol. Drugs only have a negative impact on one's life and nothing good comes from it.

[24] I am ashamed of what I did and the desperate person I had become to do something so stupid for a drug habit. I'm sorry for what I was trying to do. I have paid the price by my imprisonment and it will not happen again.

[25] The past 18 months has allowed me to reflect on my life, how ashamed I am of myself. I have gained insight into the impact of my offending on the wider community and the impact that the drugs could have had had they hit the streets."

10. As the authorities make clear, it is not simply a matter of putting a descriptor on the role played by the offender in the drug trafficking. If one wanted to place a descriptor the apt one would be that of a courier. However, there are some people who obtain that description merely by moving drugs from one suburb to another or from a supplier's home to elsewhere in the same suburb. There are some "'couriers" who merely drop off drugs ordered over the telephone by drug users from a drug supplier.

11. Here, the role played by the offender was that of a long distance courier of a large commercial quantity of the drug but only on the one occasion. There is no suggestion for example that the offender himself was going to start selling drugs as he was proceeding along the north coast of New South Wales. This appears to have been only a "one-off" role for the reason that the offender explained in his affidavit.

12. Clearly, it is below the mid-range of objective seriousness for offences of this nature, but it must be remembered that we are here dealing with a large commercial quantity of a prohibited drug. General deterrence is very important in cases of this nature. From what I have read I am satisfied that specific deterrence need not be stressed as I feel confident that the offender will not return to this activity.

Personal Circumstances

13. I turn now to the offender's personal circumstances. It is convenient to refer to the psychologist's report which is before me, that of Ms Ann-Marie De Santa Brigida. The psychologist consulted with the offender via AVL for two hours, interviewing him for 1.5 hours and then administering psychometric testing for a further half-hour. Ms De Santa Brigida obtained this history:

"Mr Riviezzi stated that he was born in Australia and is of Italian heritage. He stated that his father Mark, aged 64, is employed as a hairdresser and he has no history of alcohol/substance abuse, psychiatric problems or criminality.

Mr Riviezzi stated that his mother Felicia, aged 53, is employed with the Teachers Federation and she has no history of problems. [According to the offender's mother she in fact works for the Department of Education rather than the Teachers Federation].

Mr Riviezzi stated that his parents separated in 2015 but despite continual requests for his father to depart the family home he refused until the home was sold in early 2017. Since his parents' divorce he stated that he had lived with his girlfriend Antonella 'on and off' but he has primarily remained with his mother. He reported a very loving and supportive relationship with his mother and it is noted from her affidavit dated 19 June 2024 that she is in regular contact with her son and travelled once per month to visit him when he was in a country correctional centre.

Mr Riviezzi stated that his relationship with his father has always been emotionally distant and he recalled that when he and his brother were children his father never did the regular activities with them such as camping and sporting activities. He stated that he has always found his father to be emotionally absent. He stated that since his father moved out of the family home he has had no contact with him at all and his father is unaware of his current incarceration.

There are two children in the family unit and Mr Riviezzi is the elder in sibling order. Adriano is aged 24. Mr Riviezzi has never been married and has no children.

Mr Riviezzi stated that he attended Holy Spirit Primary School until the completion of year 6. He was in mainstream class and he was not in trouble for misbehaviour. He subsequently attended St Pius X High School until the completion of year 12. He reported that he was never in trouble for misbehaviour and he had friends at school and he was not bullied. Overall, he stated that school was a positive experience for him.

After leaving school Mr Riviezzi initially worked in a café at Kirribilli before he started a diploma in product design at Enmore TAFE. After completing this course he started attending UTS for an undergraduate degree in product design. However, after six months he decided that he no longer had interest in this field and he left and started studying a Certificate IV in electrotechnology. He completed his apprenticeship in 2020 and he is a fully accredited electrician.

Mr Riviezzi stated that he worked as an electrician at Jorgens Electrical for four years and at Captain Cook Electrical for four years. He reported that his work performance with both employers was a reflection of his increasing drug use. He was sacked from both positions for non-attendance at work. On one occasion his employer discovered that he had overdosed on illicit substances in the car.

Mr Riviezzi subsequently decided to start his own company … approximately six months prior to his arrest. He stated that after starting his own business he felt that his life was finally heading in the right direction but admitted that his business did not make any significant amount of money. After serving his sentence he stated that it is his desire to return to his trade."

In the affidavit of the offender he expresses exactly that intention.

14. I turn to consider the offender's use or misuse of substances. The offender first smoked cannabis at the age of 16. He would smoke that substance on Saturdays and Sundays averaging ten cones over the course of the weekend. He stopped smoking cannabis around the age of 18 or 19. However, at the age of 18 he first used MDMA (ecstasy) but initially his use of that substance was recreational in nature.

15. However, at the age of 18 he also used cocaine but his drug use did not start to escalate to any significant extent until 2016, that is, when he was approximately 21 years old. Until the age of 25 he used 2 grams of cocaine per day which he would insufflate. Around the age of 25 the cost of cocaine was so prohibitive that he reduced his use to weekends only.

16. One of the side effects of cocaine was increased anxiety. To relieve that, he started using GHB and/or GBL at 20 to 30 millilitres per day. He also started to use Xanax averaging 2 millilitre bars per day. He would use either Xanax or GHB or GBL on alternate days. Ms De Santa Brigida tells me that Xanax belongs to a class of drugs known as benzodiazepines and is commonly used to treat anxiety disorder, panic attacks and insomnia.

17. The offender has also used crystal methylamphetamine or ice. Initially that was confined to once per month but in the month before he was arrested at Coffs Harbour, he was using that substance daily. The offender also used alcohol first at the age of 16 but he appears to have increased his consumption remarkably at the age of 27 such that he was drinking ten standard drinks of alcohol almost every day. Indeed, prior to his arrest he had sought some drug and alcohol counselling at Ryde Community Health Centre, and he was advised that he required inpatient detoxification. He was booked into that but pulled out at the last moment.

18. Ms De Santa Brigida diagnosed stimulant use disorder, severe for amphetamine type substances; sedative, hypnotic or anxiolytic use disorder, severe; and severe alcohol use disorder. However, at the time the offender was interviewed by her she classified those diagnoses as being "in a controlled environment" meaning that those drugs and alcohol were no longer available to the offender.

19. Ms De Santa Brigida formed the view that the offender had few adolescent criminogenic need factors that would be considered to predict adult criminality. That is encouraging. She then considered psychometric testing. The results did not indicate any attempt by the offender to control the impression that he was giving, or any attempt by him at deception. One test showed that the offender had a marked risk of experiencing clinical problems that had a potential for emotional and/or behavioural problems substantially greater than was typical in the community for adults. She thought the offender was likely to be impulsive and sensation seeking. She also believed that the offender's responses to some testing indicated a marked potential for difficulties with an alcohol problem.

20. Psychopathology testing indicated that the offender had a moderately severe case of depression and a moderately severe case of anxiety. That to me indicates little other than that the offender was probably normal. Any person standing for sentence or awaiting a sentencing hearing when charged with an offence carrying a maximum penalty of life imprisonment who was not stressed or anxious or depressed would be abnormal.

21. Importantly from my point of view, Ms De Santa Brigida's testing for the risk of recidivism found that the offender was in the low to moderate range for risk of recidivism, that is, that he was in the low to moderate range for reoffending. The final paragraph of her report is this:

"It has been noted that Mr Riviezzi does not follow the typical trajectory to criminality. He does not meet the criteria for oppositionality or conduct disorder in his developmental years. The results of the [testing] indicate that he falls in the low to moderate range for recidivism."

22. The offender's history is confirmed in great detail by the affidavit of his mother sworn on 24 October 2024 which is lengthy. However, worthwhile quoting at this stage is what his mother said about remorse. It is this:

"[40] Roberto has demonstrated genuine remorse for his actions. He is deeply sorry for what occurred and stepped up and took responsibility for his actions. He realises the consequences of what he did and he apologised for the strain that his arrest has placed on me, his family, and his then partner. He feels ashamed and did not want to disappoint me and he is trying to protect me from further worry. He acknowledges the gravity of the situation and the potential impact on his work and personal life and is aware of the importance of maintaining a law-abiding lifestyle moving forward and states that he won't repeat the behaviour. He also stated that he does not ever want to return to gaol and jeopardise his freedom and independence. The experience of being on remand for 18 months facing an uncertain future has been undeniably a challenging situation and a huge life lesson for him."

23. There is also in evidence a statement from his younger brother Adriano who is on his way to becoming a chartered accountant. He describes growing up with his older brother being a strained relationship because they would always argue over everything. My younger brother and I had similar experiences in youth, but it is clear that Adriano will support his brother, as my brother does me.

24. Also in evidence is a letter from the offender's aunt, the sister of his mother, who confirms that the offender is showing extreme remorse for his actions and feels tremendously shameful and immensely sorry for what he did. She believes that he will never offend again. There is also in evidence a letter from his mother's current partner who will clearly continue to support not only the offender's mother but also the offender himself when he is released from gaol. He has had experiences with the offender for more than three and a half years during the period that he has been in a relationship with the offender's mother.

25. The offender comes before me for sentence as a man with no substantial criminal history. On 3 November 2019, he possessed a prohibited drug for which he was fined $500 by the Local Court. However, he appealed that decision to this Court. The fine was set aside, and he was placed on a Conditional Release Order (“CRO”) without any conviction being recorded. On 3 November 2019, he drove a motor vehicle with illicit drug present in his blood. He again obtained a CRO without conviction for that offence.

26. On 21 September 2022, the offender was found guilty of possessing or attempting to possess a prescribed restricted substance such as Xanax and also in possession of a prohibited drug. For those offences the offender was placed on a Community Correction Order (“CCO”) for a period of 18 months. On 21 September 2022, the offender had driven a motor vehicle under the influence of drugs for which he was fined as well as being placed on a CCO. There has been no earlier period of imprisonment and no crimes of violence nor anything to suggest that the offender would otherwise have any problem other than the use of illicit drugs and perhaps too much alcohol.

27. The offender was born in 1995. At the time of the offending he was 27. He is now 29 years old. In custody he has been abstinent from drugs and alcohol. He has participated in many activities. He has been attending Narcotics Anonymous. He has been active to the extent that he has introduced to at least one correctional centre a new activity for himself and other inmates. In his affidavit he said this:

"[17] Since moving from Macquarie Correctional Centre to Hunter Correctional Centre I have been working with an officer in trying to implement a 'model building' class which I was a part of at Macquarie Correctional Centre. In the model building class we used matchsticks to make replica objects such as boats and bikes. On 28 May 2024 I taught my first two classes, one on Tuesdays and two classes on Thursdays each week. The morning class went from 9am to 11am and the afternoon class went from 1pm to 4pm with ten people in each class.

[19] The classes are not supervised by personnel except for the cameras in the room. We are also allowed to use items such as Stanley knives and scissors to cut the matchsticks. I am proud of myself for organising this class and integrating a new program for inmates at Hunter Correctional Centre. I enjoy teaching the classes as they gave me a sense of purpose and time passes more quickly. This all came to an end in October as the classification changed at the Hunter CC and I was moved to Parklea Correctional Centre."

28. Before being transferred to the Hunter Correctional Centre the offender had been working in facility maintenance as an electrician fixing things around the gaol. There are numerous records before me which all show the offender regularly attending Narcotics Anonymous when it was available to him. As to his future, in his affidavit the offender said this:

"[26] I have now been in custody for 18 months and have been clean since my arrest. I believe that I have changed my ways and I have not got into any more trouble and have no gaol charges recorded against me.

[27] I have plans to work upon my release and keep busy and to resume my counselling sessions to stay on top of my addictions.

[28] Upon my release I intend to show my mother and my brother who have supported me that I have changed. This I will do from being a respected son and brother. Through my actions I will show them I will be a productive member of the community.

[29] I have told them before and intend to keep my word that I will not re-engage with drugs again and will not reoffend. I will stay away from any negative people whom I associated previously with and will comply with the treatment plan recommended by the psychologist."

29. In short, I am satisfied that the prospects of rehabilitation are extremely good. Therefore, the prospects of recidivism are extremely remote.

Special Circumstances

30. I have been urged by learned counsel for the offender to make a finding of special circumstances. I am happy to do so. The offender has kept away from illicit substances and alcohol since his arrest and imprisonment. Although drugs are available in most correctional centres, they are extremely hard to come by. When released into the community the offender will find illicit drugs more readily available. To maintain his determination not to revert to drug use or the overuse of alcohol, the offender should be encouraged by being under the supervision of Community Corrections who can ensure that he does not revert to illicit substances. The longer he is under supervision the better. That means the longer he is on parole, the better.

Consideration

31. Bearing in mind both the maximum penalty and the standard non-parole period, but bearing in mind that this offence appears to be towards the bottom of the range for being knowingly involved in the supply of a large commercial quantity of prohibited drug, I will commence the sentencing exercise with a theoretical sentence of five years imprisonment. I reduce that by 25% to reflect the offender's plea of guilty at the earliest available opportunity. That produces a head sentence of three years and nine months. The statutory nexus between the head sentence and the non-parole period is three-quarters which would indicate a non-parole period of two years and eight months. However, I do find, as I said, special circumstances and I intend to fix a non-parole period of two years and two months so that the offender will be on parole for one year and seven months.

32. The offender was arrested on 23 May 2023, and if my mathematics be correct, which is always problematic, it means that the offender should be eligible to be released on parole on 22 July 2025.

33. No one wants any further reasons, do they?

BETTS: No, your Honour.

PACE: No, your Honour.

HIS HONOUR: Thank you.

Sentence

34. Roberto Riviezzi, on the charge that on 23 May 2023 at Coffs Harbour in this State you did knowingly take part in the supply of a prohibited drug namely cocaine in an amount of 3,164 grams being an amount not less than a large commercial quantity of that drug, you are convicted.

35. I sentence you to imprisonment. I set a non-parole period of two years and two months commencing on 23 May 2023 and expiring on 22 July 2025. I impose a further period of imprisonment of one year and seven months to commence upon the expiration of the non-parole period and expiring on 22 February 2027. The total sentence is therefore three years and nine months, comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period.

36. Any further orders sought, Mr Crown?

BETTS: No, your Honour.

HIS HONOUR: Mr Pace?

PACE: No, your Honour.

HIS HONOUR: Good luck to you, sir. Thank you.

**********

Amendments

07 July 2025 - Grammatical correction in [1].

Decision last updated: 07 July 2025