R v Violi
[2015] SASCFC 2
•22 January 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v VIOLI
[2015] SASCFC 2
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Parker)
22 January 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - AGGRAVATING CIRCUMSTANCES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES
The appellant was convicted by a jury for manufacturing methylamphetamine for sale and trafficking in a controlled drug (1 benzylpiperazine). On the morning of trial, the appellant pleaded guilty to 22 counts of possession of a firearm without a licence. The drugs and firearms were found in a workshop leased by the appellant. The Judge imposed a sentence of four years imprisonment for the drug related offences, and three years imprisonment for the firearms offences to be served cumulatively with a non-parole period of four years.
Whether the sentences imposed where manifestly excessive. Whether the Judge erred in sentencing the appellant as a principal offender. Whether the Judge erred in failing to direct that the sentences operate at least partly concurrently.
Held per Kourakis CJ (Bampton and Parker JJ agreeing) dismissing the appeal:
The appellant’s acquittal of the third count of trafficking in a commercial quantity of 1 benzylpiperazine did not detract from the jury’s finding that the appellant was a principal in the manufacture and trafficking of drugs occurring within the workshop premises that he occupied. (Kourakis CJ at [4].)
The sentence was not manifestly excessive. There was no reason to order partial concurrences as the conduct comprising each offence was distinctly different but also aggravated the overall offending. There is increased emphasis on general deterrence in the sentencing of commercial drug offending. (Kourakis CJ at [4].)
Firearms Act 1977 (SA) s 5, s 11, s 36A, referred to.
R v Kong (2013) 115 SASR 425; R v Nozuhur [2013] SASCFC 81; R v Copeland (No 2) (2010) 108 SASR 398, applied.
WORDS AND PHRASES CONSIDERED/DEFINED
"Manifestly excessive", "Principal offender", "Temporal and geographical proximity to offences", "Concurrent sentence", "Total sentence"
R v VIOLI
[2015] SASCFC 2Court of Criminal Appeal: Kourakis CJ, Bampton and Parker JJ
KOURAKIS CJ: The appellant was convicted by the majority verdict of a jury of the offences of manufacturing methylamphetamine for sale and trafficking in a controlled drug, namely 1 – benzylpiperazine (BZP). The jury acquitted the appellant of a third count which alleged trafficking in a commercial quantity of BZP.
The appellant also pleaded guilty, on the morning of trial, to 22 counts of possession of a firearm without a licence. The drugs and firearms were found in a workshop and sheds leased by the appellant. The appellant was sentenced on 5 September 2014 for all of the offences of which he was convicted. The Judge imposed a sentence of four years imprisonment for the drug related offences and three years imprisonment for the firearms offences. The Judge ordered that the sentences be served cumulatively. The Judge fixed a non-parole period of four years.
The appellant appeals against that sentence on the grounds that:
(a)the sentence was manifestly excessive;
(b)the Judge sentenced the appellant on the basis that he was a principal, which is inconsistent with his acquittal on one of the counts of trafficking in BZP; and
(c)the Judge erred in failing to direct that the sentences he imposed operate at least partly concurrently.
I would dismiss the appeal. The doubt that the jury were prepared to entertain about the possession of the BZP located in one of the sheds did not detract from the inference that the appellant was a principal in the manufacture and trafficking of drugs carried out from the workshop site arising out of his occupation at the premises. The sentence was not manifestly excessive, and there was no reason to order any partial concurrences because the conduct comprising each set of offences was distinctly different, but at the same time aggravated the overall offending.
Factual circumstances
In about 2009 the appellant leased a workshop and a number of storage sheds in suburban Adelaide for the purposes of his panel beating business. The appellant also worked as a labourer on demolition sites and stored materials from those sites at the sheds.
A police search on 8 June 2011 discovered drugs, drug laboratory equipment and a large cache of firearms and ammunitions in the workshop and adjoining sheds. The laboratory utensils found dispersed around the shed were capable of producing methylamphetamine when properly assembled. All of the ingredients, save for iodine, for the production of about 21 grams of methylamphetamine were also found in the workshops.
Quantities of methylamphetamine mixture were found in about eight locations in the workshop. Altogether some 19.7 grams of methylamphetamine mixture was located and on analysis it was found to contain 14.8 grams of pure methylamphetamine. The methylamphetamine was valued at several thousands of dollars.
In the top drawer of a pie warmer in the workshop police discovered 32 grams of BZP. The appellant was convicted with the trafficking of that amount. Two sets of digital scales and cash in the amount of $15,540 were also located in the workshop. So too was an operating tazer. Surveillance equipment was installed at the front entrance of the workshop and transmitted vision to a screen installed in a rear upstairs area of the workshop.
Another quantity of BZP was found in a toolbox in a shed which was referred to at trial as “D2”. The evidence of a forensic scientist established that the BZP found in the workshop and in shed D2 had a strikingly similar appearance and chemical structure. That quantity of BZP in shed D2 was found in a green toolbox which also contained a 20 gauge sawn off single barrel shotgun, a tazer disguised as a mobile phone, a Smith and Wesson self loading pistol and a Colt self loading pistol. Most of the remaining firearms were found in another adjoining shed described at the trial of the appellant as Unit BO.
The firearms the subject of the 22 counts can be grouped as follows:
·Possession of two prescribed firearms, namely a Ruger self loading rifle and a CBC single barrel sawn off shotgun (the maximum penalty for each offence is $50,000 or ten years imprisonment);
·One class C firearm, namely an AMT self loading repeating rifle (the maximum penalty for this offence is $35,000 or seven years imprisonment);
·Two class D firearms, a pump action self loading shotgun and a self loading rifle (the maximum penalty for each offence is $35,000 or seven years imprisonment); and
·Ten class H firearms, pistols and revolvers (the maximum penalty for each offence is $35,000 or seven years imprisonment); five class A and two class B firearms, being various rifles and shotguns (the maximum penalty for each offence is $20,000 or four years imprisonment).
At trial the appellant testified that he was not aware of the presence of the drugs and did not know that the laboratory equipment was designed for use to manufacture drugs. He gave evidence that a friend, PT, had a set of keys to the shed and came and went as he pleased. The appellant testified that PT stored his own belongings in the shed and that the appellant did not question him about them. The appellant claimed that, in the two weeks between the appellant’s arrest and before PT’s death in a factory fire, PT had confessed to him that he was responsible for the presence of the drugs and laboratory equipment.
The appellant claimed that he had known PT for about seven years and that he would see him every day or two. The appellant’s counsel informed the Judge that the appellant pleaded guilty on the basis that he fell within the extended liability imposed by s 11 of the Firearms Act 1977 (SA) (the Firearms Act) in that he was the occupier of the premises in which the firearms were found and ought reasonably have known of their existence.[1]
[1] See s 5 of the Firearms Act 1977 (SA) and the defence in s 36A.
However, in the course of sentencing submissions, the Judge made it clear that he considered it important to ascertain the extent of the appellant’s awareness of the presence of the guns and therefore the nature of his possession.
Traces of DNA matching the appellant’s were found on a Berretta handgun. The appellant’s counsel claimed that PT had shown the appellant the Berretta some months or up to a year before the police searched the workshop and associated shed. The appellant’s counsel informed the judge that both the appellant and PT shared an interest in hunting and that the appellant assumed that PT was licensed. He saw PT “come and go” with guns and assumed that it was for the purpose of hunting. The appellant’s counsel conceded that the appellant had turned a blind eye to PT’s activities but that he had no idea of the extent of PT’s gun collection.
Personal circumstances
The appellant is forty years old. He married in 1996 but divorced in 2009. There are two sons of his marriage, who are aged 10 and 13, the care of whom he shares with his former wife. He moved to Adelaide in 2002 where he was in constant employment until 2009 when he started his own panel beating business in the workshop. References provided from business associates, friends, employers and the appellant’s former wife, speak very highly of him. After his arrest the appellant worked for a transport company which specialised in delivering furniture and setting up offices. His prior offending history is limited to driving and summary offences.
Sentencing remarks
The factual basis on which the Judge sentenced appears in the following paragraphs:
I am satisfied beyond reasonable doubt that you committed both, the Manufacturing drug offence, Count 1), and the Trafficking drug offence, Count 3), as a principal offender. Perhaps your deceased friend, [PT], had a hand in this offending. The majority of the jury must have rejected, and rightly so in my view, your highly implausible explanations of the incriminating paraphernalia and drug found in the workshop where you spent most of your time. So too the majority of the jury must have taken the view that you were in possession, in the full legal sense of the word, of the 32 g of BZP in the pie warmer in the workshop.
In respect of Count 2) of which you were acquitted, the jury must have accepted, however, that there was a reasonable possibility that the three lots of BZP in the toolbox in the shed I have mentioned was [PT’s] since, according to your evidence, it was a toolbox used by him.
I consider also that it has been established that the money found in various locations in the van and workshop was connected with the drug enterprise which was plainly being conducted from the workshop. Accordingly I will be ordering the forfeiture of that cash.
As for the firearms offences, while I accept that the firearms might have been owed by [PT], I am convinced that you well knew that he was storing them in the shed. There was a veritable arsenal of weapons and associated paraphernalia and you were, in large measure, I find, aware of that.
The sentencing Judge reduced the sentence he would have imposed on the firearms offences by ten percent for the appellant’s late plea on the day of trial. The Judge ordered the forfeiture of the cash found in the workshop and in the appellant’s van. He also ordered the forfeiture of the firearms, ammunition, tazers, other weaponry and drug laboratory equipment.
The appeal
I reject the appellant’s contention that the finding that the appellant was a principal offender with respect to the manufacture of methylamphetamine and trafficking BZP charges was inconsistent with the appellant’s acquittal on the trafficking count with respect to the quantity of BZP found in the toolbox.
It must be remembered that the jury verdict on the manufacture of methylamphetamine charge shows that the jury accepted that methylamphetamine was produced in the appellant’s workshop with the use of the laboratory equipment found there. The appellant’s explanation for its presence was rejected. An inference may readily be drawn that the appellant was the principal offender in that manufacturing enterprise because the methylamphetamine was manufactured in his workshop. The security equipment and the large amount of cash found in the workshop reinforces that inference. On the rejection of the appellant’s account, and in the absence of any other sworn evidence to support the proposition that PT, or another person, was the principal, it can be safely concluded that the appellant was the principal with respect to the manufacture of methylamphetamine and the trafficking of BZP found in the workshop.
The acquittal of the appellant on the count relating to the BZP found in shed D2 shows no more than that there was a reasonable doubt about the appellant’s involvement with that quantity. The jury may have thought it highly likely that the appellant was criminally involved in the trafficking of that amount but have been left with some doubt because the BZP was not found in the workshop with the other BZP which the jury must have concluded was controlled by the appellant. It should not be assumed that the jury acquitted the appellant of possessing the BZP in shed D2 because it accepted his testimony about PT. The jury must have rejected much of what the appellant said about PT. The jury may simply have reasoned that the storage of that BZP away from the workshop allowed for the possibility that another person had taken that quantity of BZP out of the possession of the appellant or had not yet handed over possession of it to the appellant.
Nor does the acquittal of possession of the BZP in shed D2 cast any doubt on the Judge’s finding that the appellant was aware of the presence of most of the firearms. The Judge was not obliged to take into account the acquittal in sentencing on the firearms offences. The firearms counts and drug counts were distinct charges. The jury verdict was not returned in a trial of the firearms charges. There was no res judicata or issue estoppel raised on the firearms offences by reason of the jury’s acquittal of the appellant on count 2. It was for the Judge to determine the appropriate basis on which to sentence from the material before him.
The Judge’s conclusion that the appellant knew of the presence of at least most of the firearms is supported by the accepted facts that:
·The appellant was the lessee and occupier of the sheds in which the firearms were found;
·He and PT, on the assumption that firearms were left at his premises by PT, were good friends who saw and spoke to each other almost daily;
·PT spoke to the appellant about at least some of the guns; and
·The sheer number of firearms.
Manifestly excessive
The manufacture of a significant quantity of methylamphetamine in a laboratory of this kind under the cover of a legitimate business is a serious example of offending of this kind. The maximum penalty for both drug offences is $50,000 or imprisonment for ten years.
The importance of general deterrence in the sentencing of commercial drug offending was emphasised by this Court in R v Kong:[2]
There continues to be concern about the prevalence of drug abuse in our community. Since Mangelsdorf, the variety of illicit drugs available has increased. Twenty years ago, heroin was a primary concern and was considered to be the most harmful of illicit drugs. The position has changed with the promotion of methylamphetamine and the availability of a variety of illicit drugs, all of which are addictive and have very harmful effects. Research and knowledge about the effects of drugs known as “speed” and “ice” has developed. The so-called party drugs are readily available. The manufacture and importation of drugs is prevalent. The abuse of illicit drugs causes great social harm. The treatment and the management of drug addiction places a substantial financial burden on the health budgets of this State and the Commonwealth. The crimes committed by addicts to support their habits cause much loss and suffering to the community. Those who organise and participate in the distribution of illicit drugs create a serious risk of collateral injury to innocent members of the public. It is, therefore, nor surprising that in an effort to tackle the social harm caused by the abuse of illicit drugs, Parliament has imposed substantial penalties for dealing in commercial drugs to both punish and deter those who are attracted by the large profits that dealing can generate. For those reasons, general deterrence must be given great weight in the balancing of the competing sentencing objectives in the case of commercial drug dealers.
[2] (2013) 115 SASR 425 at [90].
This Court has also emphasised the importance of general deterrence in the sentencing of offenders who commit offences against the Firearms Act. In R v Nozuhur[3] this Court, by majority, dismissed an appeal against sentences of three years and four years imposed with respect to the unlawful possession of pistols. It was an accepted fact that the possession was for sinister and dangerous purposes. The latter offence was committed whilst the offender was on bail following his apprehension on the first. Gray J said:[4]
[3] [2013] SASCFC 81.
[4] R v Nozuhur [2013] SASCFC 81 at [23]-[25].
Possession of a firearm is a privilege and a serious responsibility. The overriding policy of the Firearms Act 1977 (SA) is to protect the public from the unsafe or criminal use of firearms. As I observed in Pollitt:[5]
[5] Pollitt v Police [2007] SASC 382, [20].
… Parliamentary debates indicate that the Firearms Act was designed to strictly control the possession and use of firearms in response to their increasing use by persons in serious offences and the proliferation of dangerous weapons in the community. Its purpose included the provision of community protection through the licensing and regulation of firearms. Parliamentary debates indicate that the Act was:
Designed to introduce stricter controls upon the possession and use of firearms. The rapid increase in the number of serious offences involving the use of firearms, and the proliferation of extremely dangerous weapons, make stricter control necessary to safeguard the community.
[Footnote omitted.]
Relevant amendments were made to the Firearms Act in 2008. In the second reading speech the Minister said:[6]
In South Australia, the majority of violent criminal behaviour with firearms does not involve legitimate firearms owners, nor legitimately owned, secured and registered firearms. Whilst there is some conjecture as to the quantity of illegal firearms circulating in the community, there is no doubt that there is a market for unrecorded and essentially untraceable firearms to be used for a criminal purpose. It is the nature of this enterprise that there exists difficulties in police being able to prevent this trade and the subsequent crime arising from it.
General deterrence is of importance in sentencing for offences of this kind. The community should not be complacent about the dangers of firearms and the damage that can be caused by them.[7]
Loaded firearms such as those possessed by the defendant put the public in danger. In this case, there was no apparent reason for the possession of the pistols other than for criminal activity. The defendant admitted that the pistol the subject of the September offending had been given to him as a consequence of his association with the Finks. No legitimate purpose was identified. This pistol was possessed at the time that the defendant was in possession of cocaine for supply. It is commonly the case that drugs and firearms go together.
[6] South Australia, Parliamentary Debates, Legislative Council, 5 March 2008, 2055 (Paul Holloway).
[7] Offe v Police (2002) 84 SASR 1, [26].
In his dissent Nicholson J took the view that the starting points before reduction for pleas of guilty chosen by the Judge were too high.
The sentence imposed on the appellant for the firearms offences are comparable to the sentences referred to by Nicholson J in support of his conclusion that the sentence in Nozuhur was manifestly excessive. The sentence imposed on the appellant falls within the range of sentences imposed in the District Court. Moreover, the appellant’s offending is an egregious example of offences of its kind because of the sheer number and nature of the guns involved.
The appellant’s primary contention as to the sentence being manifestly excessive is that the Judge failed to order at least partial concurrency between the sentence imposed on the drug offences and the sentence imposed on the firearm offences. That submission must be rejected.
The appellant contended both that the possession of the firearms was not connected in any way to the drug offences and that the mere temporal and geographical coincidence between the drug and firearm offences warranted some measure of concurrency.
When multiple offences are committed in the course of a single criminal enterprise, sentences for those offences may be ordered to be totally or partially concurrent for several reasons. In R v Copeland (No 2)[8] I explained those reasons as follows:
[8] (2010) 108 SASR 398 at [102]-[107].
It is difficult, but I think useful, to attempt to identify why it is that very similar and proximate offences committed in furtherance of a single criminal plan warrant, at least to some extent, concurrent sentences.
First, there is the consideration, which applies in all cases when sentences of imprisonment are made cumulative, that the deprivations of a sentence of a particular length will be suffered all the more deeply if it is served after the completion of one or more earlier terms. In Jarvis v The Queen[9] Ipp J explained this consideration in the following way: [10]
What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length. Thus, for example, whereas a sentence of seven years may be appropriate for one set of crimes and a sentence of eight years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved simply, because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison. (Emphasis added)
Secondly, in my view, the length of imprisonment necessary to achieve specific and general deterrence in the case of sentences imposed for a single course of conduct will generally be less than the result of the multiplication, by the number of offences committed, of the sentence which would have been imposed for a single offence.
Thirdly, where the offences are committed within a very short space of time it may be that the limited time and capacity which the offender had to reflect on whether or not to commit the subsequent offences mitigates his or her moral culpability.
There can be no hard and fast rules, but considerations like the ones to which I have referred will inform the characterisation of offences as one or more courses of conduct and the extent, if any, to which the sentences imposed for them should be concurrent. I hasten to add that too much emphasis should not be placed on the characterisation of multiple offences as a single course, or a number of courses, of conduct. Even where the connections are insufficient to characterise the offences as a single course of conduct it may be that there is sufficient reason to make the sentences at least partially concurrent.
The considerations which govern the question of concurrency, together with a consideration of the offender’s prospects for rehabilitation, are, I think, the same matters which inform the reductions which are sometimes made for totality. Where, for example, a sentencing judge commences with a notional sentence which is calculated by simply multiplying the sentence which would have been imposed on one of a series of offences, by the number of offences committed in that series, there will almost always need to be a substantial reduction for totality. However, if the notional head sentence is arrived at after making proper allowance for the appropriate degree of concurrency, the artificiality commented on by Bleby J in R v Nylander[11] will seldom arise. In such a case the notional sentence may only need to be adjusted, if at all, to allow some scope for rehabilitation in the circumstances of the particular offender.[12]
[9] Jarvis v The Queen (1993) 20 WAR 201.
[10] Jarvis v The Queen (1993) 20 WAR 201 at 207B-D per Ipp J, approved in Herbert v The Queen (2003) 27 WAR 330.
[11] R v Nylander (2003) 228 LSJS 24 at 81]-[85].
[12] See R v Cramp (2010) 106 SASR 304 at [51]-[52].
In a case where the temporal and geographical proximity of the offences is purely a matter of happenstance, the policy considerations to which I referred are largely inapplicable. Viewing the drug and firearm offences as an unconnected series of offences, the sentences imposed on each set of offences are moderate and there is no reason for concurrency having regard to the totality of the accumulated sentences.
Of course it was to the appellant’s advantage to deny any connection between the two sets of offences. On this appeal, counsel for the Director of Public Prosecutions did not contend that there was a connection. Nonetheless in my view the sentencing Judge in this case would have been entitled to find that there was. The connection between the trafficking of illicit drugs and the use of firearms, in particular pistols and sawn off rifles, is notorious. The courts of this State often hear evidence of the association between firearms and drug traffickers. Not only is the fact of the association well known, but so too are the underlying reasons for it. First, there is strong competition between criminal organisations in the distribution of illegal drugs. The criminal organisations often resort to the use of firearms in the ensuing turf wars. Secondly, the risk that drugs, or money derived from drug deals will be stolen is high. Guns are often carried to deter would-be thieves. Thirdly, drug debts cannot be enforced in the courts of this State. When consumers who have been extended credit for the purchase of drugs do not pay, drug traffickers often resort to guns to enforce their debts.
In this particular case, it cannot be known precisely how the firearms found in the appellant’s sheds were going to be used. They may have been stored in case they were needed to protect the appellant’s own drug enterprise from encroachments by others. They may have been marketed to some of the appellant’s drug customers who wished to secure a firearm for any one of the purposes to which I have just referred. It will seldom be possible for a court to be certain about the precise use of firearms in these circumstances precisely because criminal organisations do not keep detailed business records, and because criminals seldom testify against each other. Nonetheless, possession of both commercial quantities of drugs and firearms is serious, and an aggravating factor in sentencing for both the firearms offences and drug offences whether or not the precise nature of the connection between the two can be shown
Even though there is a connection between firearms and drug traffickers, there is very little reason for concurrency between the sentence imposed for the two kinds of offences. The choice to both engage in the drug trade and to do so with firearms is a deliberate one. Drug trading and manufacture can be engaged in without firearms, and firearms may be possessed by someone who is not a drug trafficker. The illegal possession of firearms by drug traffickers must be strongly deterred. For that reason courts should be slow to order any degree of concurrency. There was no error in ordering that the sentences be served cumulatively. The sentences individually and in totality were not manifestly excessive.
Conclusion
I would dismiss the appeal.
BAMPTON J: I agree with the reasons of Kourakis CJ and would dismiss the appeal.
PARKER J: I would dismiss the appeal. I agree with the reasons of Kourakis CJ and have nothing to add.
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