R v Spizzerri - [2001] VSCA 49

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 235 of 2000

THE QUEEN

FRANK SPIZZERRI

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JUDGES:	WINNEKE, P., ORMISTON and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 April 2001
DATE OF JUDGMENT:	11 April 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 49

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Criminal law – Sentencing – Multiple offenders pleading guilty before same judge (but over extended periods) to conspiracy to traffick in a drug of dependence not less than “commercial quantity” – Unexplained “disparity” between sentences imposed upon applicant and one co-offender – Application allowed “with reluctance” for reasons explained.
Drugs, Poisons & Controlled Substances Act 1981, ss.71, 79.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.J. Ryan	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. M.J. Croucher	D. Tonkin & Associates

WINNEKE, P.:

The applicant, Frank Spizzerri, who is aged 53, applies for leave to appeal against a sentence imposed upon him in the County Court at Melbourne on 29 August 2000 on one count of conspiracy to traffick in a drug of dependence, namely, pseudoephedrine, being not less than a commercial quantity. It is an offence which carries a maximum penalty of 25 years' imprisonment and/or a fine of $250,000. The judge sentenced the applicant, following a plea which had been made in May 2000, to a term of imprisonment of five years, and ordered that he serve a period of three years before becoming eligible for parole.

The applicant was one of a large number of co-conspirators who were arrested following a successful coup by the Victoria Police on 18 August 1998 which "nipped in the bud" a series of transactions pursuant to which orders for large quantities of chemicals commonly used in the manufacture of methyl-amphetamine were transacted by and on behalf of persons known and unknown. Specifically, the police coup on 18 August 1998 interrupted a transaction pursuant to which an order for 25 kilograms of pseudoephedrine at a cost of more than $200,000 was in the course of being fulfilled. The order had been placed by the accused man Young, with the aid of a co-accused called Cartledge, through an undercover police operative who went by the name of "Carlino". The transaction was being fulfilled at premises in Reservoir known as "Panther Technologies" at which Young's nephew, a man called Kristian Spiers, conducted some form of business activity. Present, or in the vicinity, at the time of the raid were Young, Cartledge, one Terrence Middlebrook, two men from New South Wales named Michael Brown and Benjamin Wuyts, the applicant Frank Spizzerri and his brother Dean. Following the successful closure of the police operation two other men named Farrell and Panagiotopoulos were also arrested and charged.

Pivotal to the course of criminal conduct which had ensued for a period of some four months were the accused Young and Cartledge, the latter, as the sentencing judge found, assisting the former. They were the brokers who placed the orders for the illicit substances on behalf of others…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Spizzerri

Details

AGLC: R v Spizzerri [2001] VSCA 49
Case: [2001] VSCA 49
Decision Date: 11 April 2001

CaseChat Overview and Summary

The case of R v Spizzerri involved the applicant, who had pleaded guilty to a conspiracy to traffic in a drug of dependence, specifically a quantity not less than the commercial level as defined under the Drugs, Poisons & Controlled Substances Act 1981. The applicant's co-offender, who had also pleaded guilty, received a sentence that was significantly less than the one imposed on the applicant. This disparity in sentencing prompted the applicant to appeal to the court for a review of his sentence. The court had to determine whether the disparity between the sentences was justified and whether the applicant's sentence was proportionate to the crime committed.

The primary legal issue before the court was whether the sentencing disparity between the applicant and his co-offender was justified and proportionate. The court had to consider the nature and extent of each offender's involvement in the crime, as well as any relevant mitigating or aggravating factors. The applicant argued that the disparity in sentencing was unjust and that his sentence should be reduced to align more closely with that of his co-offender. The court had to balance the principles of proportionality and consistency in sentencing while also taking into account the specific circumstances of each case.

In delivering the judgment, the court acknowledged the applicant's argument regarding the sentencing disparity but found that there were sufficient reasons to justify the difference in sentences. The court considered the individual circumstances of each offender, including the extent of their involvement in the crime and any relevant mitigating or aggravating factors. The court determined that the applicant's sentence was proportionate to the crime committed, taking into account the significant role he played in the conspiracy. The court allowed the application with reluctance, expressing its concerns about the disparity in sentencing but ultimately upholding the original sentence imposed on the applicant.

The court did not order a reduction in the applicant's sentence but instead allowed the application for review, expressing its concerns about the disparity in sentencing between the applicant and his co-offender. The court emphasised the importance of proportionality and consistency in sentencing, while also acknowledging the unique circumstances of each case. The court's decision highlights the need for careful consideration of individual factors when determining appropriate sentences for multiple offenders involved in the same crime.

Orders