JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	13, 14 December 2010
DATE OF SENTENCE:	1 March 2011
CASE MAY BE CITED AS:	R v Tricarico
MEDIUM NEUTRAL CITATION:	[2011] VSC 53

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CRIMINAL LAW – Sentence – Trafficking in a drug of dependence not less than a large commercial quantity – Guilty plea – Verdins principles – Bereavement Disorder – Adjustment disorder regarding potential re-incarceration – Parity – 5 years’ imprisonment with non-parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms F Dalziel	Office of Public Prosecutions
For the Accused	Mr S Shirrefs SC	Garde Wilson Lawyers

HIS HONOUR:

David Tricarico, you have pleaded guilty to the offence of trafficking in a quantity of a drug of dependence not less than the large commercial quantity applicable to that drug. The drug of dependence is phenyl-2-propanone. The applicable quantity of that drug which is a large commercial quantity is 1 kilogram. The amount of the drug which you trafficked was approximately 5 kilograms. The period over which that trafficking occurred was 1 May 2007 to 5 June 2007. The maximum penalty for the offence is life imprisonment.

Phenyl-2-propanone, or P2P, is itself a drug of dependence, but it has value in the illegal drug trade because it can be converted into methylamphetamine. The offence you committed arose out of your involvement in the manufacture and supply of P2P to a methylamphetamine trafficking enterprise associated with Tony Mokbel, which was referred to by some of the participants as “the company”. It is not alleged that you were yourself part of “the company”, but rather that your activities concerned the supply to “the company” of a critical ingredient, namely P2P.

In order to understand your offending conduct it is necessary to address your personal background.

You were born on 14 October 1983, the son of Giuseppe Ferola, known as “Joe” or as “Max”. Joe Ferola had married your mother in 1982. They had three children before they separated in 1989, and divorced in the following year. You are the oldest of those children. You have a younger brother and a sister. In evidence before me, your mother explained the breakdown of her marriage as being the result of your father’s involvement in gambling and café culture which meant he was rarely at home. Joe Ferola was a close associate of a number of men involved in the illegal drug trade, including Tony Mokbel. One of Joe Ferola’s activities in that regard was the production of P2P.

You were brought up by your mother and her parents, and by your mother’s second husband. Your mother explained that her second husband was generous to you and to your siblings but that he never took on a true parental role. You were, and you remain, very close to your maternal grandparents. From time to time you have lived…

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 Tricarico

Details

AGLC: R v Tricarico [2011] VSC 53
Case: [2011] VSC 53
Decision Date: 1 March 2011

CaseChat Overview and Summary

In the matter of R v Tricarico, the defendant faced charges related to trafficking in a drug of dependence in a quantity deemed to be a large commercial amount. The case was heard in a relevant court where the defendant pleaded guilty to the charge. The central legal issues revolved around determining an appropriate sentence for the offence, taking into account the principles established in Verdins and various mitigating factors presented by the defendant. The court had to weigh the severity of the offence against the mitigating circumstances, including the defendant's guilty plea, his bereavement disorder, and an adjustment disorder stemming from the potential re-incarceration.

The court examined the principles of sentencing as outlined in Verdins, which emphasised the need to balance the culpability of the offence with any mitigating factors. It considered the defendant's guilty plea as a significant factor that could warrant a reduction in the sentence. Additionally, the court took into account the defendant's bereavement disorder and adjustment disorder, both of which were presented as substantial mitigating factors. The court also had to ensure that the sentence achieved parity with similar cases, thereby maintaining consistency in sentencing practices.

After weighing all the factors, the court determined that the defendant should be sentenced to five years' imprisonment with a non-parole period of three years. This sentence reflected the court's consideration of the severity of the offence, the mitigating factors presented, and the need for the sentence to be consistent with similar cases. The court's decision thus balanced the principles of justice, deterrence, and rehabilitation in determining an appropriate penalty for the defendant's actions.

Orders