Rillotta v The State of Western Australia

[2017] WASCA 55

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   RILLOTTA -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 55

CORAM:   BUSS P

MAZZA JA
MITCHELL JA

HEARD:   3 MARCH 2017

DELIVERED          :   27 MARCH 2017

FILE NO/S:   CACR 94 of 2016

BETWEEN:   ROBERTO LUIGI RILLOTTA

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S              :CACR 95 of 2016

BETWEEN             :RICCARDO RILLOTTA

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :HERRON DCJ

File No  :IND 1703 of 2014

Catchwords:

Criminal law - Appeals against sentence - Sale of cannabis - Whether total effective sentence of 6 years 3 months' imprisonment infringes first limb of totality principle

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Leave to appeal granted
Appeals dismissed

Category:    D

Representation:

CACR 94 of 2016

Counsel:

Appellant:     Mr S Vandongen SC

Respondent:     Mr J A Scholz

Solicitors:

Appellant:     David Manera

Respondent:     Director of Public Prosecutions (WA)

CACR 95 of 2016

Counsel:

Appellant:     Mr S Vandongen SC

Respondent:     Mr J A Scholz

Solicitors:

Appellant:     Abigail Rogers Barristers & Solicitors

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

AB v The Queen [1999] HCA 46; (1999) 198 CLR 111

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

Basilio v The State of Western Australia [2010] WASCA 202

Day v The Queen [2001] WASCA 284

Eacott v The State of Western Australia [2009] WASCA 112

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

HNA v The State of Western Australia [2016] WASCA 165

House v The King (1936) 55 CLR 499

Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601

Lester v The State of Western Australia [2011] WASCA 128

LJH v The State of Western Australia [2016] WASCA 155

McRobb v The State of Western Australia [2015] WASCA 189

Miles v The State of Western Australia [2016] WASCA 138

Nguyen v The State of Western Australia [2009] WASCA 8

R v Kilic [2016] HCA 48; (2016) 91 ALJR 131

R v Pham [2015] HCA 39; (2015) 256 CLR 550

Rodi v The State of Western Australia [No 2] [2014] WASCA 233

Roffey v The State of Western Australia [2007] WASCA 246

Sandwell v The State of Western Australia [2012] WASCA 15

The State of Western Australia v Auckram [2013] WASCA 256

The State of Western Australia v Malone [2015] WASCA 188

The State of Western Australia v Wilson [2015] WASCA 119

Trajkoski v The State of Western Australia [2008] WASCA 130

Tran v The State of Western Australia [2016] WASCA 37

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

REASONS OF THE COURT: 

Summary

1. The appellants, Roberto and Riccardo Rillotta, were each convicted after trial of two counts of selling or supplying a prohibited drug, namely cannabis, to another person. These were offences against s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (Drugs Act). The appellants both seek to appeal against their total effective sentences of 6 years 3 months' imprisonment on the ground that the sentences infringe the first limb of the totality principle of sentencing.

2. For the following reasons, their appeals on that ground must be dismissed.

Circumstances of offending

1. In August 2013, Roberto and Riccardo Rillotta were jointly operating a well‑established business involving sending significant quantities of cannabis from South Australia to Western Australia.  They arranged for 50 pounds (about 22.7 kg) of cannabis to be delivered by a truck driver, Devin Zippel, from South Australia to Western Australia.  On 16 August 2013, a truck driver based in Western Australia, Rodney Trouchet, delivered 30 pounds of cannabis in three different packages to the home of Giuseppe Franchina in Balcatta.  On 17 August 2013, Mr Trouchet delivered 20 pounds of cannabis in two packages to the Mirrabooka workshop of Carmelo Adornetto. 

2. Roberto and Riccardo Rillotta were acting in concert, and were jointly responsible for organising the supply and sale of cannabis to their customers, Mr Franchina and Mr Adornetto, in Western Australia.  They largely conducted business using 'covert' mobile phones, subscribed in false names, with a view to avoiding detection by police.

3. Roberto Rillotta predominantly dealt with Mr Zippel regarding the transportation of cannabis from South Australia to Western Australia. 

4. Riccardo Rillotta predominantly dealt with the Western Australian customers, Mr Franchina and Mr Adornetto.  Riccardo Rillotta flew from Adelaide to Perth on 3 August 2013 and met Mr Franchina.  On 19 August 2013, Riccardo Rillotta flew from Adelaide to Perth where he met with Mr Adornetto at his work premises and collected money for the supply of 20 pounds of cannabis.  On the same day, Riccardo Rillotta intended to visit Mr Franchina to collect payment for the supply of 30 pounds of cannabis.  Riccardo Rillotta was unable to do so because, by that time, Mr Franchina had been arrested.

5. Both Roberto and Riccardo Rillotta engaged in the cannabis business for purely commercial purposes, in circumstances where each faced financial difficulties.

Personal circumstances

1. Roberto Rillotta was 36 years old at the time of sentencing, and Riccardo Rillotta was 35 years old at the time of sentencing.  Both had unremarkable upbringings and steady employment histories, operating legitimate businesses which had been closed down prior to their sentencing.  Each was in a stable relationship and had young children (Riccardo had a 1‑month‑old baby and Roberto two sons aged 6 and 2 years).  Both were in good health.  Roberto Rillotta had a history of cannabis use, while Riccardo Rillotta was not a user of illicit drugs.  The sentencing judge accepted that each appellant expressed some degree of genuine remorse, but the financial difficulties which they would face on release from prison meant there was some risk they would again resort to offending at that time.

2. Riccardo Rillotta had no relevant prior convictions.  Roberto had previous convictions for dealing in cannabis.  He was convicted and fined in South Australia for cultivating more than a prescribed number of cannabis plants on 4 June 2009.  He was also sentenced to 3 years' imprisonment for two counts of trafficking a total of 2.85 kg of cannabis on 18 May 2010.  Roberto Rillotta committed the offences which are the subject of this appeal only two months after he was released on parole in South Australia.  The sentencing judge noted that the fact that Roberto Rillotta reoffended while on parole was an aggravating feature of the offences.  He also noted that, on completion of the Western Australian sentences, Roberto Rillotta would be required to complete the 16‑month balance of his South Australian sentences.

3. The sentencing judge also noted that the appellants had offered to plead guilty to the counts of which they were convicted in satisfaction of an indictment which included a conspiracy count against them.  The State had not accepted the offer, and the appellants pleaded 'not guilty' to all counts in the indictment.  The jury had not been able to reach a verdict on the conspiracy charge, which the State subsequently withdrew.

Sentencing judge's approach

1. The sentencing judge said that the most significant sentencing considerations were personal and general deterrence.  He noted that, while mitigating circumstances personal to the appellants were relevant, less weight was given to them in order to give effect to the sentencing principle of general deterrence.  The sentencing judge took account of the appellants' preparedness to plead guilty to the two offences of which they were convicted as a mitigating factor.  He concluded that a term of immediate imprisonment was the only appropriate sentencing option.

2. The sentencing judge considered that a term of 5 years' immediate imprisonment was justified for each of the two counts of which each appellant was convicted.  In the case of each appellant, his Honour reduced the sentence for the second count to 15 months' imprisonment on totality grounds, and ordered that the sentences be served cumulatively.  The sentencing judge noted that, by reason of his more serious record and the fact that he committed the offences while on parole, Roberto Rillotta would ordinarily receive a greater sentence than Riccardo Rillotta.  However, those features were counter-balanced by the fact that Roberto Rillotta would be required to serve the balance of his sentences in South Australia, which impacted totality.  The sentencing judge therefore decided to impose the same total effective sentence of 6 years 3 months' imprisonment on both appellants.

3. The sentencing judge backdated the sentences imposed on Riccardo and Roberto Rillotta to 10 and 15 March 2016, respectively, to take account of time spent in custody.  Both appellants were made eligible for parole.

Ground of appeal

1. Both appellants seek to appeal against their sentences on the ground that the sentencing judge erred in imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellants' conduct, having regard to all relevant circumstances including those referable to the appellants personally.

2. The applications for leave to appeal on this ground were referred to the hearing of the appeal.

The totality principle

1. This proposed ground of appeal alleges an infringement of the first limb of the totality principle of sentencing.  Principles governing sentencing appeals on that ground are well established.  The first limb requires that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.[1]

   [1] Roffey v The State of Western Australia [2007] WASCA 246 [23] ‑ [26].

2. In assessing whether an aggregate sentence is disproportionate to the overall offending it is necessary to have regard to sentences imposed in comparable cases.  This is so that a judgment can be made as to whether the sentence in question is broadly in line with sentences customarily imposed.  However, in making such comparisons the significant variations in relevant sentencing factors must always be borne in mind.  Ultimately, each case must depend upon its own particular facts and circumstances.[2] 

   [2] Basilio v The State of Western Australia [2010] WASCA 202 [17].

3. The purpose of referring to current sentencing practices is to attempt to achieve consistency in sentencing and in the application of relevant sentencing principles.  The requirement to have regard to the sentences imposed in those cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed.  Rather the range of sentences imposed in the past may inform a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle.[3]  The consistency which is sought is in the application of relevant legal principles, rather than numerical equivalence.[4]

   [3] R v Kilic [2016] HCA 48; (2016) 91 ALJR 131 [22]; R v Pham [2015] HCA 39; (2015) 256 CLR 550 [26] ‑ [27].

   [4] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [48] ‑ [49].

4. Section 30(3) of the Criminal Appeals Act 2004 (WA) provides that, unless this court allows an appeal under s 30(4) of that Act, it must dismiss the appeal. Section 30(4) relevantly provides that this court may allow the appeal if, in its opinion, a different sentence should have been imposed. It is established that this court's authority to intervene is dependent upon demonstration of express or inferred material error.[5]  In the present case, no express error of principle has been identified.  The success of the appeals therefore turns of demonstration of inferred error; ie that error of principle is to be inferred from a result which is unreasonable or plainly unjust.[6]

   [5] See, for example, LJH v The State of Western Australia [2016] WASCA 155 [106], applying Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [35] and AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 [130].

   [6] House v The King (1936) 55 CLR 499, 505; Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] ‑ [28]; The State of Western Australia v Wilson [2015] WASCA 119 [19] ‑ [22].

Disposition of the appeals

1. The maximum penalty for an offence against s 6(1)(c) of the Drugs Act relating only to cannabis is a fine of $20,000 and a term of 10 years' imprisonment.

2. In Lester v The State of Western Australia,[7] McLure P observed:

   The court has since 2001 repeatedly stated that it takes a more serious view of the threat the cannabis trade poses to society and the increased prevalence of it.  The risk correlation between the use of cannabis and mental illness and progression to harder drugs is a familiar theme in sentencing materials in more recent times. 

   Deterrence is the main sentencing consideration for dealing in prohibited drugs, including cannabis, and matters personal to the offender are accorded correspondingly less weight.  In the past five years at least there has been a tangible, incremental firming up in the sentences imposed for dealing in other types of prohibited drugs.  That is not obviously so in the sentencing of offenders for dealing in cannabis, notwithstanding the identified need.

   [7] Lester v The State of Western Australia [2011] WASCA 128 [21] ‑ [22], see also to similar effect Day v The Queen [2001] WASCA 284 [38].

3. In McRobb v The State of Western Australia,[8] Buss JA, with whom other members of the court agreed, endorsed those observations.  McLure P's observations were also endorsed by the court in HNA v The State of Western Australia.[9]

   [8] McRobb v The State of Western Australia [2015] WASCA 189 [52].

   [9] HNA v The State of Western Australia [2016] WASCA 165 [38].

4. In Lester, McLure P, with whom other members of the court agreed, reviewed a number of sentences for offences under s 6(1) and s 7(1) of the Drugs Act involving cannabis.  The reviewed total effective sentences ranged between 1 year 4 months' immediate imprisonment and 2 years 8 months' immediate imprisonment.[10]  In many cases, the offending concerned significantly lower weights than the approximately 22.7 kg of cannabis which the appellants sold.  However, some of the cases reviewed in Lester concerned significant amounts of cannabis.  Trajkoski v The State of Western Australia[11] concerned a sophisticated cultivation involving plants with a total value of about $250,000, and the offender was sentenced to 2 years 8 months' imprisonment.  Eacott v The State of Western Australia[12] involved possession of over 51 kg of dried cannabis from a bush crop, and the offender was sentenced to 2 years 3 months' imprisonment.  It must be borne in mind that Trajkoski and Eacott were appeals by the offenders and not by the State.

   [10] This range is in post‑transitional terms.  The total effective sentence in one case reviewed by McLure P, Nguyen v The State of Western Australia [2009] WASCA 8, stood outside this range, but included sentences for more serious offences. Nguyen received a total effective sentence of 10 years' imprisonment for a variety of drug dealing offences, including in relation to drugs other than cannabis.

   [11] Trajkoski v The State of Western Australia [2008] WASCA 130.

   [12] Eacott v The State of Western Australia [2009] WASCA 112.

5. Two cases decided since Lester reflect a firmer approach than that taken in Trajkoski and Eacott. 

6. The first case is The State of Western Australia v Malone,[13] where a total effective sentence of 7 years 6 months' imprisonment was imposed by this court in a State appeal against sentence. In that case the offender was the sole distributor in Western Australia for a syndicate involved in distributing large quantities of cannabis grown in South Australia to Western Australia and Queensland. Malone's position in the syndicate appears to have been similar to that of Mr Adornetto and Mr Franchina in the present case – a purchaser of cannabis in bulk from South Australia who was responsible for its distribution in Western Australia. However, the scale of Malone's established offending was much greater than the appellants' offending in the present case. Malone was charged with 16 counts, each involving between 10 and 40 kg of cannabis. The total estimated weight of the cannabis involved in Malone's offending was 330 kg, and its estimated street value was about $2.9 million. Malone pleaded guilty shortly after committal to the District Court, and received a 15% discount under s 9AA of the Sentencing Act 1995 (WA). Malone was 33 years old at the time of sentencing, and had a dysfunctional upbringing but stable employment history. While he had a criminal record, it did not involve prior serious criminality. Malone had limited remorse and insight into his offending. Psychological testing indicated that Malone had an impaired capacity to communicate ideas and understand problems. Malone had a number of health problems.

   [13] The State of Western Australia v Malone [2015] WASCA 188.

7. In considering Malone, it is important to bear in mind the well-established principle that, when this court allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper limit of the range.

8. The second case is McRobb, which involved an appeal by one of Malone's customers, who took possession of cannabis in one pound packages and on‑sold them at prices between $4,400 and $4,800 per pound. McRobb was charged with two counts of possession of cannabis with intent to sell or supply it to another, in relation to three 10 kg boxes of cannabis received from Malone. McRobb was also convicted of conspiring to sell or supply cannabis to others, contrary to s 6(1)(c) and s 33(2) of the Drugs Act, for which the maximum penalty was 20 years' imprisonment and a fine of $75,000. McRobb was convicted of three offences after trial, and did not show any remorse. He was 29 years old at the time of sentence, had a stable employment history, ran his own construction business and had no prior convictions. McRobb had no history of drug use, and carried on his drug dealing business purely for commercial purposes. McRobb's total effective sentence of 6 years' imprisonment was upheld on appeal.

9. A number of other cases decided since Lester may also be noted, while recognising that they concerned much lesser degrees of seriousness of offending than the present case.

10. HNA involved an offender who participated in a large-scale and sophisticated hydroponic cannabis cultivation operation.  However, the offender in that case played only a minor low-level role in the operation, assisting in the harvesting of cannabis head material.  His sentence of 9 months' immediate imprisonment for one count of cultivating cannabis plants with intent to sell or supply to another was upheld on appeal.

11. Also since Lester, a number of cases have considered lower level offences of possession of cannabis with intent to sell or supply to another.  Sentences of 12 months' immediate imprisonment were upheld by this court in Sandwell v The State of Western Australia[14] and Rodi v The State of Western Australia [No 2].[15]  Both cases involved significantly different circumstances to the present.  Sandwell concerned the possession of about 2.5 kg of cannabis and 147 cannabis seedlings by an offender who was not a commercial dealer of cannabis and intended to use the cannabis himself and distribute it to a small number of friends.  Rodi involved possession of less than 1 kg of cannabis by an offender sentenced on the basis that he was a mid-level dealer.  In Miles v The State of Western Australia,[16] a total effective sentence of 22 months immediate imprisonment was upheld in respect of possession of about 421 g of cannabis with intent to sell or supply, together with dexamphetamine tablets and possession of $27,500 in cash reasonably suspected of being unlawfully obtained.

    [14] Sandwell v The State of Western Australia [2012] WASCA 15.

    [15] Rodi v The State of Western Australia [No 2] [2014] WASCA 233.

    [16] Miles v The State of Western Australia [2016] WASCA 138.

1. Lester and the subsequent decisions demonstrate a firming up of sentences for offences involving trafficking in significant quantities of cannabis.  Of the cases decided by this court since Lester, only two - Malone and McRobb - involved a substantial operation of the kind considered here.  The range of sentences imposed in the past does not fix the boundaries within which future sentences must be passed.  Rather the range of sentences imposed in the past may inform a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle.  Sentences imposed in a few cases do not define the sentencing range, and are not sufficient in number to provide a sentencing pattern.  At best they are representative of particular aspects of the spectrum of seriousness.[17]

   [17] See, by analogy, Kilic [21] ‑ [25].

2. Recognising these limitations in the use of past cases, the sentences imposed on the appellants do appear to be broadly consistent with Malone and McRobb.  The dispositions in Malone and McRobb reflect the more serious view that the court has taken of the threat to the community posed by large-scale commercial cannabis operations.  Malone did involve a significantly greater volume of cannabis, but the operation was of the same kind as conducted by Mr Adornetto and Mr Franchina. 

3. In relation to the amount of cannabis involved in the offending, it is relevant to recall the principles established by cases such as Tran v The State of Western Australia:[18]

   The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.

   [18] Tran v The State of Western Australia [2016] WASCA 37 [29].

4. Factors which inform an assessment of the overall criminality involved in a series of commercially driven drug offences include the quantity of drugs involved, the offender's knowledge about the drugs involved, the offender's role in the operation and the reward which the offender anticipated receiving.[19]  In the present case a significant quantity (about 22.7 kg) of cannabis was involved, and the appellants were well aware of the nature and quantity of the drugs they were selling.  They stood at the head of the supply chain into Western Australia, and organised the delivery of the cannabis by subordinates.  They operated their own business as a joint operation, purely for commercial gain.  While there was no finding as to the value of the cannabis sold or the amount of money which exchanged hands, it can be inferred that the appellants anticipated making a significant profit from the venture if it succeeded.  That was their motivation for conducting the illegal business in the first place.

   [19]Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [64].

5. The appellants are to be punished only for what they have been convicted of doing.  However, the circumstance that the sales took place as part of an ongoing commercial operation provides the context for assessing the seriousness of the conduct of which the appellants have been convicted.  It shows that the conduct was not isolated or out of character, and indicates that it was planned and premediated.

6. In neither case were there unusual mitigating features.  While the fact that the appellants offered to plead guilty to the offences of which they were ultimately convicted may be taken into account as a mitigating factor,[20] the fact remains that they pleaded not guilty to those charges.

   [20] See, The State of Western Australia v Auckram [2013] WASCA 256 [95] ‑ [97].

7. Having regard to all relevant sentencing principles, and in particular to the seriousness of the appellants' conduct, a total effective sentence of 6 years 3 months' imprisonment does bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to all the circumstances of the case, including those referable to the appellants personally.  The appellants' ground of appeal is not made out.

Orders

1. While we would grant leave to appeal to both appellants on their sole ground of appeal, the appeals must be dismissed.