R v Sergi, Trimboli & Zucchelli

[1996] QCA 138

[1996] QCA 138

COURT OF APPEAL

MACROSSAN CJ
McPHERSON JA
PINCUS JA

CA Nos 49 of 1996
      50 of 1996
      51 of 1996

THE QUEEN

v.

FRANCESSCO SERGI
JOSEPH TRIMBOLI and
DAVID ZUCCHELLI  Applicants

BRISBANE

..DATE 29/04/96

JUDGMENT

McPHERSON JA:  These are applications by Francessco Sergi, Joseph Trimboli and David Zucchelli for leave to appeal against sentences imposed in the Supreme Court on 29 January 1996.  In each instance the applicant pleaded guilty to the offence of unlawfully producing a dangerous drug, namely cannabis, with circumstances of aggravation.  The sentence in each instance was imprisonment for six years.  There was no recommendation for parole.

The offence comprised the cultivation of a plantation of cannabis on a property near Roma.  The enterprise was a large and sophisticated undertaking with proper irrigation and precautions against discovery by the police.  The workers wore gloves and a scanner and a radio were operated in order to stay abreast of police activity.

The seeds that were used to germinate the plants had been bought and brought from overseas.  The details of the cultivation, its extent and the circumstances of its being set up are set out in some detail in the decision of this Court in Queen v. Romeo and Zucchelli, No 352 of 1994 and No 371 of 1994 in appeals that came to this Court from sentences imposed on other members of the cultivating group.

Before going further with the matter I should say that the extent of participation of each of the applicants in the cultivation, so far as it appears from the evidence, can sufficiently be gathered from what was said by the sentencing Judge in the course of his remarks below.  He said that the applicant Zucchelli had assisted to set up the crop site and to maintain it, and had help to take a crop away after it was harvested.

As to the applicant Trimboli, he said, "You have assisted in this production exercise.  You assisted to lay pipes.  You were involved in the maintaining of the crop and helped with the growing, advising, et cetera.  You discussed the crop and the quantity of it and its harvesting, and you were obviously involved intimately with its production."

So far as Sergi is concerned, His Honour said, "You also were involved in procuring the irrigation equipment, more than six kilometres of piping and picked it up.  You were involved in picking up a motorcycle which was used apparently for some purpose in connection with the growing and the preserving of the crop.  You were involved in loading it."

Before us the principal complaint that has been made about the sentences imposed is their disparity with the sentence imposed on Guiseppe Pangallo who was another person involved in the subject cultivation.  He was sentenced by the same Judge who dealt with the three applicants now before us, but on an occasion prior to the sentencing with which we are now concerned. 

He came before Mr Justice Ambrose in August 1995.  He is said in the material to have been a foreman of the cultivation process at the site and that plainly involves him to a close degree in what happened.  Whether his interest in the venture went beyond that simply of a worker and extended to being one of the entrepreneurs is something that we cannot tell from the material before us.

The point of distinction that is made strongly by Mr Strathdene on behalf of the applicants in this matter, in relation to the sentence imposed on Pangallo, is that he received a sentence of only eight years with a recommendation for consideration for parole after three years, in circumstances in which he was not only guilty of the offence at Roma, but also guilty of an earlier offence of cultivating cannabis at a plantation near Bundaberg. 

What is said, therefore, is that if Pangallo received eight years with a recommendation for early parole for two offences of this general kind, the applicants should be dealt with considerably less severely than that.

To some extent, of course, the question of a parole recommendation as in the case of Pangallo necessarily depends on the personal circumstances of the individual concerned.  So far as the applicants in this case are concerned, Sergi, who is now 50 years old, has a criminal history which consists of, or includes, two convictions for murder in New South Wales, the victims being his brother and his brother's wife, for which he served a term of imprisonment for 11 years until being released in 1977.

Trimboli is 43 years of age.  He had an old conviction recorded at the age of 15 of being in possession of a firearm, but otherwise had no record of consequence or at all.  Zucchelli, who is 36, had a recorded conviction in 1988 for an assault occasioning bodily harm and for a wilful damage offence.  The circumstances of those offences must have been slight, as he was sentenced in the Magistrates Court at Gympie to a fine of only $100.

In the course of his submissions before us, Mr Strathdene on behalf of the applicants laid some emphasis on the wretched condition of Sergi's wife.  She has been receiving treatment for the last 12 years or so for various ailments of a serious kind, and her condition has deteriorated over the last six years.

It is suggested to us that this called for a recommendation for early parole because Sergi would naturally worry about his wife's health while he was in prison, and this meant that a sentence of imprisonment bore more harshly on him than it might on others.  One may, of course, have some sympathy with his plight in that regard, but it is difficult to avoid noticing that he was aware of the condition of his wife's health before he entered this criminal adventure; and also that the submission comes the more surprisingly from the mouth of a person who was prepared to murder his brother and
sister-in-law.

The sentences of six years imposed in this case seem to me to be clearly within the range, although it might be possible to argue that they were towards the top end of it.  It is not to be expected that a precise correlation between the sentences of co-offenders sentenced on different days, sometimes by different Judges, and exhibiting different accounts of the extent of their participation, would necessarily prevail.  The extent of participation, particularly when a plea of guilty is involved, is not always easy to discern, so that previous history, the timing of the plea of guilty, and personal factors of other kinds inevitably influence the sentencing process.

The primary complaint is, as I have said, however, the supposed disparity between Pangallo's sentence of eight years with a recommendation, and that of six years imposed on the applicants in this case.  It is plain from reading the reasons of Mr Justice Ambrose in the course of his sentencing of Pangallo that the plea of guilty was an influential factor in his Honour's decision to recommend parole.  Pangallo came to trial, there was an adjournment after the arraignment had taken place, and during that adjournment Pangallo changed his instructions and pleaded guilty.

In the case of the applicants before us their pleas of guilty followed that of Pangallo by some five or six months.  It may be, although we are told that is not the case, that in a sense they were waiting to see what Pangallo would receive by way of sentence before they ventured their own plea of guilty.

The decision on which reliance was naturally placed before us was that of the High Court in Lowe v. The Queen.  It established that sentences of persons who are co-accused and co-participants in offences of this and other kinds should be proportionate to their participation in the criminal activity and to each other, so far as it is possible to achieve that result.  An accused should not be left with a justifiable sense of grievance at a disproportion between his own sentence and those of others.

Lowe's case does not, of course, have the consequence that no difference or discrepancy will ever appear between the sentences imposed on co-offenders involved in the same course of activity.  It would, I think, generally be impossible to achieve such a result.  It may be that on one view of it Pangallo escaped rather lightly when regard is had to the fact that he was involved in two different enterprises of cultivation at different places and at different times. 

It is evident from what the learned Judge said in sentencing him that he was inclined to think that the eight year sentence might perhaps be "a bit on the low side"; but having reached the conclusion that he should impose a sentence of that order on Pangallo, he did so, and we are not now in a position to increase the sentence of Pangallo, even if we were disposed to do so.

If we alter the sentences of the applicants now before us, almost certainly we will then be confronted with a disproportion between those sentences as altered and the sentences imposed on Romeo and Joseph Zucchelli on an earlier occasion. 

It is therefore a case where, if there is substance in the applicants' submissions, the truth of the matter is that  Pangallo may have received a sentence somewhat lighter than on one view he merited, but that the applicants before us and the other participants in this cultivation exercise have been dealt with in a way that is not disproportional, having regard to their level of participation and, in some cases, their previous record of criminal offences.

In all the circumstances, I can see no sufficient disparity in the sentences imposed in the course of dealing with these various offenders as to justify the intervention of the Court in this case.  I would dismiss the applications.

THE CHIEF JUSTICE:  I agree.

PINCUS JA:  I agree.

THE CHIEF JUSTICE:  The order of the Court is that the applications are dismissed.

MR STRATHDENE:  Your Honour, I would just rise for one matter; in relation to Mr Justice McPherson, it's not a highly relevant matter, but Your Honour did say that Sergi had picked up the seeds-----

THE CHIEF JUSTICE:  I myself noticed that and wondered whether it was worth drawing Mr Justice McPherson's attention to it.  I notice in the record that a correction was entered in that respect.

McPHERSON JA:  Is there a correction at the end of it?

THE CHIEF JUSTICE:  Page 49, line 20.

McPHERSON JA:  Well, thank you.  I was simply quoting from what Mr Justice Ambrose said without noticing the correction.  But thank you for drawing my attention to it.  I will correct it in the transcript.

THE CHIEF JUSTICE:  Thank you.  It isn't of significance, however, in the result that we have announced.