R v Trimarchi

[2018] NSWDC 479

District Court

New South Wales

Medium Neutral Citation:	R v Trimarchi [2018] NSWDC 479
Hearing dates:	20 June 20183 August 2018
Decision date:	03 August 2018
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Special circumstances found – 1st time in custody, need for extended parole period to assist in rehabilitation and reintegration into the community. Indicative sentences: SEQ 1: Term of imprisonment for 6 months. SEQ 2: Term of imprisonment for 18 months. SEQ 6 + Form 1 matters: Term of imprisonment for 2 years and 6 months. SEQ 7: Term of imprisonment for 2 years. SEQ 8 + Form 1 matter (SEQ 9): Fixed term of imprisonment for 3 months. Aggregate sentence: Form 1 matters taken into account on the sentence imposed below. Sentenced to a total term of imprisonment for 3 years, comprising of a NPP of 2 years to commence on 25/7/18 and to expire on 24/7/20, and a balance of term of 1 year to commence on 25/7/20 and to expire on 24/7/21. To be released to parole on 24/7/20. Parole to be supervised by Community Corrections. The backup charges are withdrawn and dismissed.
Catchwords:	CRIMINAL – sentence – multiple charges & Form 1 matters - supply prohibited drug - cocaine, methorphan, MDMA, , ketamine, Butanediol – possess prohibited drug – possess unauthorised pistol - aggregate sentence – subjective matters
Legislation Cited:	Firearms Act 1996 Crimes (Sentencing and Procedure) Act 1999 Drug (Misuse and Trafficking) Act 1985
Cases Cited:	Thomson and Houlton (2000) 49 NSWLR 383
Category:	Sentence
Parties:	Regina Stefano Trimarchi
Representation:	Counsel: Defence: J Paluso Solicitor: Crown: A Brookman
File Number(s):	2017/00177072

Judgment

1. HIS HONOUR:  Stefano Trimarchi appears for sentence in respect of five offences as follows: 

1. Supply prohibited drug, being more than the small but less than the indictable quantity of cocaine, that is 1.75 grams; 

2. Supply prohibited drug, being more than the indictable quantity, being 15.64 grams of methorphan;

3. Supply prohibited drug being more than the indictable quantity, 48.84 grams 3,4‑Methylenedioxyamphetamine or MDMA; 

4. Supply prohibited drug being more than indictable quantity, being 33.98 grams of cocaine; 

5. Possess unauthorised pistol, being a BB airgun.

2. In relation to Offence (3) of supply prohibited drug, 48.84 grams of MDMA, the offender asked the Court to take into account when sentencing him for that offence a number of offences contained on a Form 1, being five further offences:

1. Possess prohibited drug contrary to s 10(1) of the Drug (Misuse and Trafficking) Act, being a further quantity 1.25 grams of MDMA;

2. Supply prohibited drug, more than an indictable quantity, being 1.25 grams of MDMA;

3. Supply prohibited drug, more than an indictable quantity, being 19.15 grams of ketamine;

4. Possessing a prohibited drug, being more than a small quantity, that is 1.33 grams of cocaine; Supply more than an indictable quantity of 1,4‑Butanediol, being 67.9 grams. 

3. Of the five offences on the Form 1, four are indictable offences, the quantities being in excess of the indictable quantity.  Only one, being the 1.33 grams of cocaine, would have been dealt with in the Local Court where the maximum term of imprisonment is 2 years.

4. In respect of Offence (5) Possess unauthorised pistol, there is a separate offence to be taken into account on a Form 1 of Possess ammunition w/o holding licence/permit/authority. 

5. In relation to the four offences (1) to (4) above of supply prohibited drugs, each is contrary to s 25(1) of the Drug (Misuse and Trafficking) Act 1985 and the maximum term of imprisonment in respect of each offence is 15 years and/or a fine of $220,000, and there is no standard non‑parole period.

6. Offence (5) above, possess unauthorised pistol, is contrary to s 7(1) of the Firearms Act 1996. It has a maximum period of imprisonment of 14 years and a four year standard non‑parole period.

7. The offender was committed for sentence on 9 November 2017 from the Downing Centre Local Court in respect of all of the matters and is entitled in each case to a discount of 25% as provided by Thomson and Houlton (2000) 49 NSWLR 383. Such a discount has been applied in each case.

8. The facts are agreed and are as follows:

9. Police commenced Strike Force Strehlow, an investigation into the supply of cocaine by the offender from his unit in Bourke Street, Redfern.  On 15 May 2017 a telephone intercept warrant was granted in respect of the offender's personal mobile phone.  The offender was in regular contact with Domenic Lombardo, the user of a further mobile telephone.

10. Between 24 May 2017 and 9 June 2017 Lombardo organised to visit the offender at his unit on a total of six occasions.  Prior to the majority of these meetings Lombardo called the offender and indicated he "hadn't eaten" or he was "hungry".  On each of these occasions both the offender and Lombardo would arrange to meet at the offender's unit to get something to eat.  The Crown alleges that the words “hungry”, “pizza” and ”eat” were coded messages used by Lombardo and the offender to arrange for the supply of cocaine. [This was not contested on sentence]

11. On 6 June 2017, the Supreme Court issued a surveillance devices warrant.  On Monday 7 June 2017, 9 June 2017, and 12 June 2017, investigators captured meetings between Lombardo and the offender via electronic surveillance.  On each of those occasions, Lombardo met the offender at his unit after first organising the meeting over the phone.

Offence 1 ‑ supply prohibited drug, 1.75 grams cocaine ‑ 2 bags 79% and 79.5% pure.

12. At 4.34pm on Monday 12 June 2017, Lombardo called the offender, and after a general conversation, Lombardo stated, "I've got some hungry guys".  The offender then arranged for Lombardo to come to his unit at about 6pm that evening.  Lombardo went on to say, "$5, that would be good".  The offender replied, "Hey", and Lombardo repeated, "$5 one", to which the offender said, "All right, mate".  Lombardo and the offender then made reference to going out for coffee and dessert up the road.

13. At 6.31pm that day investigators observed the offender to open the door to his unit and wait in the door frame.  A few minutes later, Lombardo walked down the corridor, shook the offender's hand and they both entered the offender's unit.  At about 7.47pm, investigators observed Lombardo to exit the offender's unit and make his way to a grey BMW sedan which was parked in the visitor parking area of the offender's complex.  Lombardo entered the driver's seat of the BMW and was the sole occupant of the vehicle.

14. The investigators conducted continuous and uninterrupted physical surveillance as Lombardo drove the vehicle to North Willoughby where the vehicle was stopped, and officers approached Lombardo, producing their identification.  Lombardo was submitted to a search which located a length of toilet paper concealing two clear resealable bags containing white powder inside his jeans pocket.  A search of the BMW was conducted, nothing further of interest being located.

15. Lombardo was arrested and cautioned and conveyed to Chatswood Police Station where he was charged with the possession of prohibited drugs.  The substance was found to be 1.75 grams of cocaine contained in two bags.  One was 79% pure and the other 79.5% pure.  It is accepted by the offender that he had provided the cocaine to Lombardo.  The Crown alleges that the total price for the cocaine was $500, as a result of the reference to “$5 one” in the preceding phone conversation. [This was not contested on sentence]

16. On 13 June 2017, police obtained a search warrant for the offender's unit.  At about 7.25pm on 13 June 2007, the offender was arrested outside 780 Bourke Street, Redfern, for the offence of supply prohibited drug and conveyed to Surry Hills Police Station.  A search warrant was then executed on his unit.  When told about the impending search, he was asked if there was anything that he wanted to tell police and he informed them that there were "a couple of bags" in the laundry.

Offence 2 ‑ supply prohibited drug ‑ 15.64 grams methorphan

Form 1 possess prohibited drug ‑ 1.3 grams MDMA

Form 1 ‑ supply prohibited drug ‑ 5.67 grams MDMA

17. As a result of the search a “Black Flag” fly spray can was located in the unit laundry.  The can had a removable base and secret compartment.  Inside the compartment was a resealable bag containing a number of grey tablets with diamond impressions which were later analysed and found to be 15.64 grams of methorphan.  Also within the can was a resealable plastic bag containing five white tablets which were later analysed and found to be 1.3 grams of MDMA.  Police also located two resealable plastic bags containing a powder substance which was later analysed and found to be 5.67 grams of MDMA.

Form 1 ‑ supply prohibited drug ‑ 19.15 grams ketamine

18. Also located within the unit laundry was an “Ajax” can with a similar removable base and hidden compartment.  Secreted inside the can was a resealable plastic bag containing a clear crystalline substance, later analysed and found to be 19.15 grams of ketamine.

Form 1 ‑ possess prohibited drug ‑ 1.33 grams cocaine 

19. Also located within the unit laundry was a “Home Select” carpet cleaner can with a similar removable base and hidden compartment.  Secreted within the compartment were two resealable plastic bags containing white powder.  The two resealable plastic bags of white powder were analysed and found to be 0.97 grams of cocaine 78% pure in one, and 0.36 grams of cocaine 76% pure in the other, giving a total of 1.33 grams.

Form 1 ‑ supply prohibited drug ‑ 67.9 grams 1,4‑Butanediol

20. Within the unit laundry was also located a plastic water bottle containing a liquid substance.  This was later analysed and found to be 67.9 grams of 1,4‑Butanediol.

Offence 3 ‑ supply prohibited drug ‑ 48.84 grams MDMA

21. Within the offender's bedroom a candle with a similar removable base and secret compartments was located.  Secreted within the candle were two resealable plastic bags containing a powder substance.  This was later analysed and found to be 48.84 grams of MDMA.

Offence 4 ‑ supply prohibited drug 33.98 grams cocaine

22. Within a cosmetic bag within the offender's bedroom wardrobe were two plastic containers which contained white powder.  This was later analysed and found to be 18.37 grams of cocaine and 15.61 grams of cocaine, giving a total of 33.98 grams of cocaine.  A sample from one bag was determined to be 57% pure and the other 83% pure.

Offence 5 ‑ possess unauthorised pistol

Form 1 ‑ possess ammunition without authority

23. Within the offender's bedroom wardrobe was a black coloured air pistol (BB gun) and shoulder holster. Also located within the offender's bedside table was a box containing an air canister and metal pellets (ammunition). Ballistics found it to be a pistol as defined within s 4(1) Firearms Act 1996 and the pellets were ammunition. In the kitchen cupboard was a plastic container with empty gelatine capsules. Police also located $200 in cash.

24. At about 10.10am the offender participated in an electronically recorded interview.  He denied the allegation of supplying Lombardo with cocaine on 16 June 2017.  When questioned about the coded conversation referencing "$5 one" and "hungry guys", he stated that he did not hear Lombardo due to an undiagnosed condition affecting the hearing in his left ear.

25. The offender made admissions to the possession of all drug exhibits located during the search warrant.  He stated that each drug exhibit was for his personal use only and that he had not touched any of the exhibits for a very long time.  Similarly, the offender stated that he had owned the BB bun (air pistol) and had done so for the past 25 years.  He was then charged.

26. Not contained in the facts, but referred to by Mr Peluso on behalf of the offender during the course of the sentence proceedings, and not disputed by the Crown, was that the cosmetics bag previously referred to contained a set of scales and that some unused resealable bags were also located within the premises.  Mr Peluso also indicated that two mobile phones had been found during the course of the search, but that there was no evidence in relation to either of the phones as to any relevant SMS messages relating to the supply of prohibited drugs.

27. The offender was the subject of information which caused authorities to have an interest in him on the basis that he was a supplier of cocaine.  The calls between himself and Mr Lombardo at least on some occasions were clearly coded and he did in fact supply at least 1.75 grams of cocaine to Mr Lombardo.  The offender had distributed in various locations in his unit a number of prohibited drugs, in effect, a smorgasbord of prohibited drugs, being cocaine, methorphan, MDMA, ketamine and Butanediol.

28. In respect of the individual amounts, Offence 1 which relates to 1.75 grams of cocaine is less than the trafficable quantity but approximately two times the small quantity.  That is of course an offence which in the ordinary course of events considered on its own would have been dealt with in the Local Court where the jurisdictional limit is in fact two years.

29. In respect of Offence 2, 15.64 grams methorphan, the trafficable quantity is 3 grams: accordingly, he had five times the trafficable quantity.  The indictable quantity is 5 grams, so he had more than three times the indictable quantity. 

30. In respect of Offence 3, 48.84 grams of MDMA, he had 65 times the trafficable quantity, 39 times the indictable quantity, and approximately one‑third of the next level of seriousness, being a commercial quantity, which is 125 grams. 

31. In relation to Offence 4, 33.98 grams of cocaine, he had 11 times the trafficable quantity of 3 grams and approximately six and half times the indictable quantity of 5 grams.

32. In my view, it is not sensible to assess the independent objective seriousness of each individual offence in the circumstances where all of the drugs were found on the one occasion, distributed in various locations or secret compartments of objects located on the offender's premises.  The individual quantity is relevant to the individual charge and is of course relevant to any sentence that might be imposed in respect of that charge.  Quantity alone is of course not the sole determinant of an appropriate sentence, but in my view each of the offences needs to be assessed in the overall circumstance of the location of a smorgasbord of drugs on a single occasion in the offender's premises.

33. Overall, they evidence a serious degree of involvement with prohibited drugs.  The offender in his evidence on sentence repeated his claim to the police that he had acquired the drugs some years in the past, and that he had ceased using prohibited drugs some two years previously, and that what was contained within his premises was simply a remnant of his past drug use.  That story was entirely implausible and of note was that it was a traversal of the pleas.

34. His counsel, Mr Peluso, was allowed the opportunity during the course of his evidence‑in‑chief to have a short conference with him and did so.  The result of that was the Court being informed from the Bar table by Mr Peluso that his client did not adhere to that evidence and accepted that he would not be able to discharge the burden of proving on the balance of probabilities that all of the drugs were for his personal use rather than for supply, particularly in respect of where the quantity was in excess of the deemable amount.

35. As for the possess unauthorised pistol, his evidence was that he had purchased that many years ago when he was attending overseas, and brought it back into Australia at a time when such weapons were not illegal. There is nothing to the contrary in relation to this matter to that evidence and I accept that those are the circumstances in which he became possessed of the unauthorised pistol. I note in respect of those firearms which are included under s 7(1) of the Firearms Act that they range over a wide variety of weapons, most of which are far more significant than an air gun.  In my view the air gun offence falls at the very bottom end of the appropriate scale of objective seriousness.

36. Before the Court in relation to subjective matters is the offender's criminal history.  I note that in 2005 he was dealt with for use false instrument and unlicensed for class.  The unlicensed for class was dismissed pursuant to s 10, and accordingly was not a conviction, and the use false instrument resulted in a $400 fine.  In 2006 he was again before the Court in respect of an offence of never licensed person, drive vehicle on road, second offence.  He was fined $1,000 and disqualified from driving for three years.  He is now 40 years of age, having been born in May 1977.  That is the only convictions record that the offender has.  I regard each of the offences as referred to as being of no significance in relation to the sentence to be determined in this matter.  That is no adverse significance.

37. Before the Court is a Pre‑Sentence Report under the hand of Martin Middleton, dated 13 June 2018, and a psychological report under the hand of Ann‑Marie De Santa Brigida, psychologist, dated 18 June 2018.  In addition, there is a letter from Damien King, dated 19 June 2018, Damien King being the head of rigging and staging at Star Event Centre, where the offender has been employed for approximately five years.

38. In addition, tendered on his behalf is a single page referring to a Westpac First Option Investment Property Loan for the dates between 8 May 2018 and 8 June 2018 indicating that the offender paid $1,478 in respect of his loan, which was principal and interest, leaving at that time an outstanding loan of $144,826.50.  The offender gave evidence on sentence that he had previously purchased a property and for the purpose of that purchase had borrowed some $225,000 from Westpac and that he was currently still paying off the mortgage in relation to it.

39. In addition to his evidence on sentence, Miss Dobrica Boceski gave evidence.  Ms Boceski is the partner of the offender; she is a Project Manager with the Department of Human Services who had been in a relationship with him for approximately two years, and had been living with him in his apartment for a period of two days prior to his arrest while her apartment at Dolls Point was being renovated.  Her evidence was that they had a loving relationship and that they had been endeavouring to commence a family with the assistance of In vitro fertilisation.

40. She clearly regarded the offender well.  She said that he worked some six or seven days each week, and that in the time that they had been together she had never observed him to take or deal in prohibited drugs.  I accept that Miss Boceski holds the offender in high regard.  She also indicated that if he was to serve a period of imprisonment she would stand by him.  She also indicated that he had indicated to her that he was devastated by what he had done, remorseful, embarrassed, and that he had assured her that he would not commit such offences again.

41. Mr Trimarchi is from a close family.  He has regular weekly contact with his mother, father and siblings and makes the effort to meet with them on a monthly basis.  His family is said to be emotionally supportive of him; his partner is said to represent a positive influence on his life.  Prior to his arrest, he had regularly trained and played in competitive ice hockey.  He has certificates in relation to fork lift operation, dogging and rigging and at the time of his arrest was employed in two separate casual positions as a rigger in the entertainment industry, working fulltime hours on a six and occasionally seven days a week basis.

42. As to his substance use, he reported to the Community Corrections Officer that he had for a period of ten years abused cocaine and MDMA almost every weekend, ceasing some three years prior to the consultation for the report, attributing his abstinence to his increased maturity.  There is some difficulty in accepting the offender's claim to have ceased the use of prohibited drugs some significant period of time previously in circumstances where he had a smorgasbord of drugs hidden through various containers in his premises, and was involved in the supply of at least a prohibited drug.

23. Considering the location of various indicia of supply such as scales and, unused resealable bags, it is not possible to accept that he had simply had what was thousands of dollars' worth of drugs sitting around in his apartment for a period of two years after he had ceased all use, rather than what one would have expected if that was in fact a truthful statement, him having flushed them, at least when he decided to cease their use so that he would not be tempted thereafter.

24. In any event, the offender did accept the evidence that he had supplied Mr Lombardo and that he was not capable of proving on the balance of probabilities that all of the drugs were his personal use in the circumstances, which really is in effect an acknowledgement of the inference that I draw that he was in fact, although unbeknownst to Miss Boceski, a supplier of prohibited drugs during the time of their relationship.  That poses some issues in accepting what is said in the Pre‑Sentence Report as to his attitude to offending, and as to whether he is truly remorseful and contrite in relation to that offending.

25. However, I note at p 40 he has no previous history for the abuse of prohibited drugs or for the supply of prohibited drugs.  I am prepared in those circumstances to accept, although it is a guarded acceptance, that his expressions of remorse and contrition are indeed genuine.

26. I note that the psychological report of Ms De Santa Brigida in effect in short outlines that the offender has had a stable and loving upbringing. His parents, both being still alive, having been solid citizens in the community, having retired, his father being 83 years of age and his mother some 80 years of age, but having brought their children up well, and supporting three children of which the offender is the youngest.

27. The eldest, John, is some 60 years of age; heowns and operates a restaurant and is divorced with four children, and his eldest sister is aged 48, is employed as a payroll officer, and is married with two children.  This offender's conduct in committing these offences must have come as a terrible surprise to his family.  He has not been physically or sexually abused in his childhood.  There is nothing from his background which leads one to understand how it is that he became engaged with prohibited drugs other than in the usual course of growing up.

28. He completed Year 6 at Epping Public School and completed the Higher School Certificate at Epping Boys High School.  He had almost no trouble at high school and nothing of relevance to this matter.  He was never expelled, did not truant and did not stay out overnight or after curfew without parental approval.  After leaving school, he secured employment with the Sydney Convention Centre at Darling Harbour as a caterer for some 17 and a half years.

29. He left that position when the centre closed down and subsequently secured employment at Star Casino, the position in which he was still working at the time of his arrest, and no doubt while on bail pending sentence.  He works some 40 plus hours per week as a rigger, and on a casual basis for what is referred to as “ICC”, as a rigger for the last year.  He completed a rigging and dogging course at Annandale TAFE in 2016/2017 and has a licence for that work.  He also has a forklift licence.

30. As to his prohibited drug use, there is more information in the psychologist’s report than in the Pre‑Sentence Report.  He apparently first experimented with illicit substances at the age of 21 to 22, using Ecstasy and MDMA, and he used those substances for many years, averaging two to three pills on a Friday and Saturday night, again claiming to have completely ceased use of them two years ago when he started his current relationship.  He apparently first used cocaine at about age 22/23, using 1 gram of cocaine on a recreational basis.  He snorted it and never used it intravenously.

31. At around 21/22, he also experimented with amphetamines.  He did not like the effect of the drug and ceased using it.  He stated that he also experimented briefly with ketamine, but he did not like the effect of that drug.  He first consumed alcohol at age 18, consuming one or two standard drinks on social occasions only.  He has no history of counselling for substance abuse problems, and he has never been admitted for inpatient detoxification or a rehabilitation program, and he does not have a problem with alcohol.

32. As to his medical history, he is said to have suffered sudden onset of vertigo with some hearing loss approximately two years ago, the episodes lasting for one to two days.  When he was approximately 11 or 12, he was involved in a car accident when he was accidentally hit while crossing the road, and required pins to be inserted in both ankles and had CSF fluid leaking from an ear.

33. I note in respect of those injuries that they do not appear to have affected his ability to engage in ice hockey or soccer when at school.  In short, in relation to the psychological report there is nothing of significance in relation to the offender that is relevant to the sentencing procedure.  He appears to be a relatively normal and psychologically stable individual.  I note that Mr King, the head of rigging and staging at the Star Event regards the offender as a reliable, hardworking, conscientious individual.  I have no reason to reject that opinion.  I accept that he is well regarded by Ms Boceski and also by Mr King.

34. In light of his previous lack of record, I accept that there is a good prospect of rehabilitation.  I have had regard to the purposes of sentencing as referred to in s 3(a) of the Crimes (Sentencing and Procedure) Act and I have had regard to s 21A(2) and (3) relating to mitigating and aggravating circumstances.

35. Any sentence imposed must reflect the objective seriousness of the offence or offences as well as providing, in my view, for both specific and general deterrence in relation to this offender and those who would commit offences of this nature.  I note that the s 5 threshold, in my view, has been passed and that no submission to the contrary was made by Mr Peluso on behalf of the offender, as was appropriate. 

36. I intend to proceed by way of an aggregate sentence and in those circumstances, I am required to indicate an indicative sentence in relation to each of the offences in respect of which he is to be sentenced.  I will deal with them in the same order that they have been referred to from the outset.

37. In relation to Offence 1, supply 1.75 grams of cocaine, the indicative sentence is six months. 

38. In relation to Offence 2, supply prohibited drug, being 15.64 grams methorphan, the indicative sentence is 18 months' imprisonment.

39. In relation to Offence 3, supply prohibited drug, being 48.84 grams of MDMA, also taking into account when sentencing for that offence the five matters previously referred to as contained on the Form 1, being four indictable matters and one summary matter, the indicative sentence is two and a half years' imprisonment. 

40. In relation to Offence 4, supply prohibited drug, 33.98 grams of cocaine, the indicative sentence is two years.

41. In respect of Offence 5, possess unauthorised pistol, taking into account the single matter contained on the separate Form 1 in respect of ammunition, I will impose in the circumstances a fixed term of imprisonment of three months.

42. Then having taken into account each of those indicative sentences, the sentence to be provided will take into account that the offender spent nine days in custody from 13 June 2017 to 22 June 2017 in respect of this matter.  As previously indicated, I have also taken into account in stating the indicative sentences the 25% utility discount.

43. The sentence is a non‑parole period of two years backdated by nine days; it commences on 3 August 2018.  The non‑parole period of two years will expire on 24 July 2020.  I make an order that the offender be released on parole on the expiry of the non‑parole period on such terms and conditions as then seem appropriate to the custodial authorities.

44. The balance of term is one year, giving a total sentence of three years.  The full term of the sentence will expire on 24 July 2021. So, in other word,s that is a three‑year sentence with a two‑year non‑parole period.  I have made a minor adjustment to the relationship between the non‑parole period and the balance of term to provide for a full year of parole in the circumstances where the offender does not appear to need any particular assistance with rehabilitation in relation to alcohol, drugs or any other criminogenic factor.

45. I have made that adjustment simply to allow him a slightly longer period of supervision to help him reintegrate into the community, which I believe he should be able to do without too much difficulty in his circumstances of a long period of employment in a particular industry at which he is apparently competent.

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Decision last updated: 01 March 2019