R v Romeo & Zucchelli

[1994] QCA 468

IN THE COURT OF APPEAL [1994] QCA 468

SUPREME COURT OF QUEENSLAND	C.A. No. 352 of 1994 C.A. No. 371 of 1994
Before: Fitzgerald P. McPherson J.A. Lee J.
[R. v. Romeo; R. v. Zucchelli]

T H E Q U E E N

v.

PASQUALE JOHN ROMEO
and

JOSEPH PAUL ZUCCHELLI (Applicants)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 04/11/1994

On 16 August 1994, each of the applicants was convicted on his

own plea on a count of production of a dangerous drug, cannabis sativa, in excess of 500 g. On the same day, Romeo was sentenced to imprisonment for six years and Zucchelli was sentenced to imprisonment for five years. It is not suggested that the difference between the sentences involved any

impermissible disparity, but each applicant has sought leave to

appeal against his sentence on the ground that it is manifestly

excessive.

The applicants are two of about nine people who were involved in

a large-scale production of cannabis sativa on a property in the Roma district. Neither of the applicants had invested any capital in the project, but each was a significant participant.

The property had been purchased for $136,000, although only

$39,000 had been paid when the operation was raided and closed

down by the police. The seeds used had been imported into

Australia at a cost of $80,000. A vehicle and equipment, including a radio scanner, pumps, piping, irrigation plant, an

earthmover, pots, fencing supplies and a refrigerator had been purchased or hired, and additional money had been expended on

food, electricity, fuel, etc. The project was large, complex,

well-financed, and professionally organised.

Initially, there were about 8,100 individual plants, in rows of

a total length of over eight kilometres, covering a total area of about 31,500 sq. m. The entire area under cultivation was fenced off with one metre high wire netting, including an

electrified wire, and there was an elaborate micro-irrigation system involving more than ten kilometres of pipes connected to dams. By the time of the police raid, a number of the plants

had either failed or been harvested. There were 3,940 plants

still in the ground, and a little over 71 kilograms of dried

marijuana.

Those involved had gone to great lengths to avoid detection.

They had a radio scanner tuned to the Roma police frequency, and

all surfaces in the house where the applicants and other lived on the property were covered with tape or cloth to prevent possible fingerprint identification. For much of the time, both

inside and outside the house, gloves were worn. The police had the property under surveillance for about four months, and

listening devices revealed that there was a consistent use of

false names, even when dealing with each other in the house.

The basis of the applicants' argument was a submission that they

should not be considered as "entrepreneurs", but as "crop sitters". The distinction involved in this submission should not be accepted. While they did not contribute capital, they did contribute their labour and, in the case of Romeo

especially, expertise. They were key participants in the establishment and production of the crop, and both were to share, apparently equally with the others involved, in the profits of the enterprise which were likely to be very large.

Romeo was aged 32 at the time of sentence. His prior criminal

history was minor, but included previous convictions, in 1993,

for cultivation and possession. However, the amount involved

was small, and he was only fined. His criminal conduct had followed the loss of his farm, following which he had been

unemployed and without prospects of re-establishing himself as a farmer. Of course, while this may help to explain why he acted

as he did, it provides no excuse.

Zucchelli was 31 years of age, with only a minor criminal

history involving offences of dishonesty extending back to when

he was 18. He has no previous drug-related convictions, and

became involved when he was approached by others at a time when

he was in financial difficulty.
The major matter relied on by each applicant was that he had
pleaded guilty at a very early stage; ex officio indictments had
been possible, avoiding committal hearings; consequently,

significant public funds, and court resources, had been saved. On the other hand, the respondent pointed to the cost involved

in detecting and obtaining evidence of the criminal enterprise,

and the need for general and personal deterrence. It was said that the applicants, and their associates, had taken calculated

risks of imprisonment.

Our attention was drawn to a number of previous decisions:

Minehan (Williams J., 30 March 1994); Meehan (Thomas J., 22 July

1994); Daley (C.A. No. 266 of 1991, 1 April 1992); Cosson

(Carter J., 2 December 1985); Adams (C.C.A. No. 330 of 1990, 25

March 1991); Sands (C.A. Nos. 338 and 339 of 1992, 2 February

1993); and Graham (1987) 28 A.Crim.R. 382.

The sentencing judge accepted that the "most important of the mitigating circumstances is the timely plea of guilty. ... Their sentences should therefore be approached on the assumption

that their pleas of guilty have resulted in very considerable

savings in public resources. A committal and a trial were likely to have been lengthy and expensive. And so the sentences

... should be much less than those which would have been imposed after a committal and a trial. I have made substantial reductions in the sentences which would have followed conviction at a trial to allow for these timely pleas of guilty."

It is not apparent what sentences his Honour would have had in

mind but for the timely pleas, but his reference to "substantial reductions" might suggest something of the order of an additional two years in each case. That would have brought Romeo to eight years' and Zucchelli to seven years'

imprisonment. Many, if not all, of the cases referred to before

this Court were raised in argument before his Honour, and we are

not persuaded he failed to give them due consideration or that the sentences which he imposed were beyond the proper sentencing

discretion. While heavy, they seem to us justifiable in the

context of this major criminal enterprise.

Accordingly, we would refuse leave to appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 352 of 1994 C.A. No. 371 of 1994
[R. v. Romeo; R. v. Zucchelli]

T H E Q U E E N

v.

PASQUALE JOHN ROMEO
and

JOSEPH PAUL ZUCCHELLI (Applicants)

FITZGERALD P. MCPHERSON J.A.

LEE J.

Judgment delivered 04/11/1994

REASONS FOR JUDGMENT - THE COURT

APPLICATIONS FOR LEAVE TO APPEAL REFUSED.

CATCHWORDS:CRIMINAL LAW - Sentence - Production of a dangerous drug in excess of 500g - cannabis sativa - sentenced to six years and five years imprisonment respectively - applicants were "crop sitters" on large scale and professional marijuana crop - approximately 8,100 plants under cultivation - applicants did not provide finance - due to receive $500,000 payment each - early pleas allowed ex officio indictments - whether distinction between "entrepeneurs" and mere "crop sitters" - whether learned sentencing judge gave due weight to pleas

Counsel:R. Hanson Q.C. with him T.P. O'Gorman for the Applicant,

Romeo

Mr Williamson for the Applicant, Zucchelli

J. Costanzo for the Respondent

Solicitors:Robertson O'Gorman for the Applicant, Romeo
Legal Aid Office for the Applicant, Zucchelli

Director of Prosecutions for the Respondent

Date of Hearing:28 October 1994