Regina v Pedavoli

[2002] NSWCCA 87

Reported Decision: (2002) 128 A Crim R 137

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Pedavoli [2002] NSWCCA 87
FILE NUMBER(S):	CCA 60634/01
HEARING DATE(S):	01.03.02
JUDGMENT DATE:	22 March 2002
PARTIES :	Crown - Applicant Dominic Anthony Pedavoli - Respondent
JUDGMENT OF:	Sheller JA at 1; Grove J at 2; Simpson J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0793
LOWER COURT JUDICIAL OFFICER :	Norrish DCJ

COUNSEL :	P J P Power (Crown/Appl) P R Boulten (Resp)
SOLICITORS:	S E O'Connor (Crown/Appl) R F Bergagnin & Co (Resp)
CATCHWORDS:	Crown appeal against inadequacy of sentence - drug offences committed whilst on bail for other drug offence - principle of totality - sentence manifestly inadequate
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Hajjo, NSWCCA, unreported, 31 August 1992 R v White, NSWCCA, unreported, 20 August 1998
DECISION:	Ref para 31

60634/01

SHELLER JA
GROVE J
SIMPSON J

22 March 2002

Regina v Dominic Anthony PEDAVOLI

Judgment

1 SHELLER JA: I agree with Simpson J.

2 GROVE J: I agree with Simpson J.

3 SIMPSON J: This is a Crown appeal against the asserted leniency of a sentence imposed upon the respondent in the District Court on 29 August 2001, following his plea of guilty to a charge that, between 14 April 1999 and 27 August 1999, he knowingly took part in the manufacture of not less than a large commercial quantity of amphetamine. By ss24(2) and 33(3) of the Drug Misuse and Trafficking Act 1985 the respondent was exposed to a maximum custodial penalty of imprisonment for life. The respondent was in fact sentenced to a total term of imprisonment for four years with a non-parole period of fifteen months, commencing on 1 September 2001, at the expiration of sentences to which he was already subject.

The facts

4 The respondent was actively involved in an organisation of which he was not the principal but which was engaged in manufacturing methylamphetamine at two different addresses in Sydney. From the facts presented to the sentencing judge it was not easy to discern the respondent’s precise role or level of engagement. However, the following facts emerged. The principal of the enterprise was a man called John Zaiter, whom the respondent had known for many years but with whom he had only recently become closely, and criminally, associated. By the respondent’s plea of guilty he admitted to having been involved for a period of about four and a half months from April 1999 but a statement of facts tendered without objection established that he had in fact been involved since at least December 1998. Intercepted telephone conversations confirmed this.

5 During at least part of the time the respondent was involved in the enterprise he occupied an apartment at Parramatta made available to him by Zaiter which was used for storage of the drug. A little over four kilograms of the drug was found when the apartment was searched. The respondent also purchased acetone, a chemical used in the manufacture of methylamphetamine. When he was arrested 82.8 g of amphetamine were secreted in three separate packages in his car. During a period of time when the respondent and Zaiter were under surveillance, the respondent was observed to travel between his apartment and another, at Strathfield, that was also used in the scheme. The respondent had made arrangements to procure pill presses.

6 The respondent was arrested on 27 August 1999 after a surveillance operation.

7 The judge found as a fact that the respondent was not involved in the leasing arrangements of either of the premises used in the manufacturing operation; and that he lived in the Parramatta apartment, that having been provided to him by Zaiter. While recognising that there was a suggestion that the respondent was to be paid $2,000 for his participation, the judge was unable to find to the requisite standard that the respondent was to receive any financial reward for his part in the operation. The judge specifically found that Zaiter was the principal, and that the respondent had been drawn into the scheme, at least in part because Zaiter was able to provide him with Rohypnol, a drug on which the respondent had developed a dependency.

Subjective circumstances

8 There was quite extensive material placed before the sentencing judge dealing with the respondent’s personal circumstances. His Honour had the benefit both of a psychologist’s report and a pre-sentence report prepared by an officer of the Probation and Parole Service. The respondent also gave oral evidence.

9 The respondent was born on 3 August 1961 in Australia of Italian parents. He was, accordingly, 38 years of age at the time he committed this offence. His mother died suddenly of a heart attack when he was ten years old and his father and one sister entered a period of excessive mourning. The respondent’s emotional needs were not met thereafter and it seems that no real relationship ever developed between himself and his father, although he continued to live with his father (now 85 years old) until moving to the Parramatta apartment.

10 The respondent attended school until he attained the school certificate. At about age 15, he left school and took up employment with a trucking company. He worked very long hours, was highly regarded and was promoted to senior positions in the company. He invested his earnings on the stock market but suffered significant losses in the crash of 1987. He was declared bankrupt. He began to experience stress and anxiety, and to suffer from insomnia and general disillusionment. From about 1992 he was prescribed Rohypnol for insomnia and became dependent upon it. He also began to gamble. In late 1995 he found the pressure of work too much and resigned his position.

11 In 1996 he became involved in the supply of narcotics. He was charged with the supply, between May and June of that year, of heroin, and of not less than the commercial quantity of cocaine. Late in 1996 the respondent was charged with those offences, and was released on bail. These charges were not finalised until May 2001, when the respondent was sentenced by Viney DCJ. Viney DCJ imposed a sentence of imprisonment for four years with a non-parole period of two years on the heroin charge; and imprisonment for five years with a non-parole period of two and a half years on the cocaine charge. He specified that the sentences were to be served concurrently, commencing 5 March 1999.

12 Accordingly, at the time the respondent became involved in the manufacture of methylamphetamine, he was on bail in respect of two serious drug offences. The longer of the non-parole periods imposed by Viney DCJ expired on 4 September 2001. Apparently intending to make the present sentence cumulative on that non-parole period, the judge sentencing for the methylamphetamine offence specified that the sentence was to commence on 1 September 2001. This appears to be an error, but one of little or no moment.

13 The respondent’s family (his father and two sisters) have all but abandoned him. He receives no family visits in prison. In his evidence he expressed deep regret for the anguish he had caused, particularly to his aged father. The sentencing judge appears to have accepted this expression of regret as genuine.

14 The respondent received very favourable reports of his conduct whilst in custody. He has undertaken such employment as is available to him, to the maximum extent possible, and has applied for and received approval to participate in a peer guidance program for young offenders. While in custody he has suffered a serious assault that resulted in eight days hospitalisation. He has formed a relationship with a woman who currently lives overseas, but whom he plans to marry on his release.

The Crown appeal

15 The Crown appeal is based on the contention that the sentence imposed is manifestly inadequate to meet the seriousness of the respondent’s crime and that this can be seen from the length of the sentence in the light of the objective and subjective circumstances. In particular on the Crown’s argument, the fact that this offence was committed whilst on bail for earlier offences of a similar nature demanded a significantly longer penalty.

16 To support this argument the Crown pointed to five specific matters which it contended had not been given adequate weight. These were identified as:

(i) the serious nature of the crime;

(ii) the question of totality in the light of the previous offences;

(iii) the aggravating feature that the offence was committed whilst on bail for the previous offences;

(iv) the respondent’s prior criminal record;

(v) the necessity for the sentence to reflect issues of general and specific deterrence.

17 It is to be observed that a measure of overlap exists in the formulation of these matters. The second, third and fourth are all variations on the theme of the respondent’s previous offences and the circumstance that he was at conditional liberty when he involved himself in this further, and serious, offence. However, notwithstanding that, the Crown’s point remains good. The commission of the offence whilst at liberty on bail is a seriously aggravating feature.

18 Counsel for the respondent argued that the sentencing judge had expressly taken this circumstance into account, having mentioned it on two separate occasions. However, closer examination of the remarks on sentence reveals that the Crown’s argument is sound and that, although the sentencing judge did indeed twice mention the fact that the offence was committed whilst the respondent was on bail, on neither occasion was it in the context of evaluating the objective gravity of the crime. Prior to commencing his sentencing remarks, the judge, directly addressing the respondent, said:

“I am required, in my view, to impose a partly cumulative sentence because of the fact that you committed this offence whilst on bail.”

19 Later, when dealing with a submission that the sentence he was about to impose be made concurrent with the existing sentences, he said:

“ It is submitted that I should impose a sentence to date from 3 March 1999, the commencement of the current sentence he is serving. This I cannot do. The offence to which the prisoner has pleaded guilty was committed on 27 August 1999 and to commence the sentence from 3 March 1999 would bring an artificiality into the sentencing process which would be quite unacceptable. I notice I said earlier that his Honour Judge Viney in backdating the sentence to 3 March 1999 took into account six months of pre-sentence custody served in late 1996 and early 1997.
The other significant matter in my view is that the offence with which I am concerned was committed whilst the prisoner was on bail. There is absolutely no doubt that I would be in error in endeavouring to make the sentence that I would impose entirely concurrent with the sentence imposed by his Honour Judge Viney.”

20 In my opinion, these passages and the absence of any reference to the fact that the offence was committed whilst on bail in the context of the assessment of the gravity of the crime for which the respondent stood for sentence, or as an aggravating feature of the offence itself, particularly when put together with the leniency of the sentence imposed, compels the conclusion that this factor was overlooked. The fact that the offences were committed whilst on bail was taken into account only on the question of concurrence or accumulation. This is a serious error.

21 The Crown has argued further that the seriousness of the offence was given inadequate weight. Again, I think there is substance in this submission. The respondent was charged with having knowingly taken part in the manufacture of a large commercial quantity of the drug. A large commercial quantity is one kilogram. The respondent, accordingly, pleaded guilty to a charge that specified more than four times the minimum large commercial quantity. Although the judge did make mention of the quantity of the drug involved, he does not appear to have given it significant weight.

22 It is obvious that the sentencing judge was favourably impressed by the respondent’s evidence, and by the steps he has taken toward rehabilitation, in particular his voluntary involvement in the young offenders’ program. He did make the express observation that:

“ … even the most powerful subjective matters cannot operate to deflect the Court from ensuring that an appropriate sentence is imposed having regard to the seriousness of the crime.”

23 It seems to me, however, that that sentiment is not reflected in the sentence ultimately passed.

24 A further matter raised on behalf of the Crown concerned general and specific deterrence. These matters are such a fundamental part of sentencing that one would be hesitant to conclude that a sentencing judge overlooked them. But if it were not so, the sentence imposed could not have been as lenient as it was.

25 The final submission that was made on behalf of the Crown concerned totality. Since the sentencing judge had before him only one offence, if the principle of totality is relevant, it is only in the context of the sentences imposed in relation to the previous offences. The principle of totality is applicable in such circumstances: R v Hajjo, unreported, 31 August 1992, per Badgery-Parker J with whom Gleeson CJ and Mahoney JA agreed; R v White, unreported, 20 August 1998, per Wood CJ at CL with whom Sully and Ireland JJ agreed.

26 In applying the principle of totality it is necessary to have some regard to the facts of the offences for which the respondent was sentenced by Viney DCJ. Viney DCJ found that the respondent was involved in those offences as part of an extensive drug circle, for a closed period between July and May 1996. His principal role, as outlined by Viney DCJ, was as “a courier”, “a conduit”, or “an understudy” to a more involved participant. As in the present case, Viney DCJ was unable to find that the respondent’s involvement was motivated by monetary gain but thought it might have been helpfulness, perhaps out of gratitude for past assistance given to him previously by others in the organisation. In any event Viney DCJ’s remarks on sentence undoubtedly disclose that that operation was extensive, sophisticated, and conducted at a high level of criminality.

27 In combination, the effective sentences imposed by Viney DCJ and those in respect of the present offence were a head sentence of six and a half years with a non-parole period of three years and nine months; and this for offences of supplying heroin, supplying not less than the commercial quantity of cocaine (over a two and a half month period in 1996) and knowingly taking part in the manufacture of a large quantity of methylamphetamine (over a four and a half month period in 1999), committed whilst on bail.

28 In applying the totality principle in respect of sentences subsequently imposed upon existing sentences, care must be taken to avoid the perception (or the reality) of interference with, or review of, the earlier sentence. Viney DCJ’s sentences must stand as appropriate for the two earlier charges. The later sentence must not be increased or decreased by reason of a perception of leniency or severity of the earlier sentences. The totality principle governs the sentence to be imposed on the present charge but is not intended to modify or moderate the previous sentences. Having regard to the facts on which they were passed, they identify the extent of the offender’s overall criminality, such as to render the subsequent sentencing judge better able to make an informed decision about the proper sentence for the later offence(s).

29 I am, however, satisfied that the Crown has made good its submission that the totality of the respondent’s criminality either was overlooked, or was given inadequate weight.

30 Although the sentencing judge referred to and indeed extracted lengthy passages from Viney DCJ’s remarks on sentence, in my opinion the sentence he imposed reveals that the principle was not properly applied.

31 The sentence imposed was, in all the circumstances, manifestly inadequate; an overall sentence for all offences of the order I have mentioned is manifestly inadequate. The principle of totality did not require nor permit the reduction of the sentence for the latest offence to the level that was imposed.

32 It is therefore necessary that this Court resentence the respondent. The sentencing judge found that there were special circumstances pursuant to s44(2) of the Crimes (Sentencing Procedure) Act 1999 justifying departure from the statutory ratio between the head sentence and the non-parole period. I would not interfere with that finding.

33 The sentence I am about to propose is less than would be the case were the respondent now being sentenced at first instance. That is because of the well known principles applicable to Crown appeals. An offender resentenced after a successful Crown appeal is entitled to expect that the appellate court will select a sentence at the lower end of the available range. That is the course I propose. I propose that the respondent be resentenced to a term of imprisonment of eight years with a non-parole period of three years and nine months, commencing 4 September 2001.

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