Tartaglia v The Queen

Case [2022] SASCA 41

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

TARTAGLIA v THE QUEEN

[2022] SASCA 41

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)

5 May 2022

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE - DIRECTIONS TO JURY

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR CLASSES OF ACT - CODIFYING ACTS

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IMPORT-EXPORT OFFENCES

Mr Antonio Tartaglia (the appellant) and Mr Paul Blokland (‘Blokland’) were jointly charged with one count of importing a commercial quantity of a border controlled drug, contrary to ss 307.1(1) and 11.2A(1) of the Criminal Code Act 1995 (Cth) (the ‘Code’). Following a trial, the jury returned unanimous verdicts of guilty with respect to both the appellant and Blokland.

The appellant appeals against his conviction on the following grounds:

1.      The verdict was unsafe or unsatisfactory in that:

a.The evidence of a text exchange on 8 August 2019 is insufficient to prove beyond a reasonable doubt that the appellant entered an agreement with Blokland, before the consignment was delivered, to commit an offence of importation of a border controlled drug; and that they both intended that a border controlled drug would be imported; or

b.The appellant did not commit an act of participation in furtherance of the agreement to import a border controlled drug.

2.The trial Judge erred in his directions in relation to s 11.2A of the Code, specifically in relation to the requirement of an act of participation by the appellant.

Held, per the Court, allowing permission to appeal on Ground 1, but dismissing the appeal against conviction:

1.As to Ground 1, there was a sufficient evidentiary basis provided by the text message exchange (viewed in the context of the other circumstantial evidence against the appellant) for the jury to find the appellant entered an agreement with Blokland to import a border controlled drug; that both intended the offence to be committed; and that the drugs were imported by Blokland pursuant to the agreement.

2.As to Ground 2, s 11.2A of the Code does not require proof that the appellant committed an act of participation in the commission of the offence in furtherance of the agreement with Blokland that the offence be committed. The trial Judge correctly directed the jury about the matters which were required to be proved for the appellant to be found guilty of the offence in accordance with s 11.2A.

The trial Judge sentenced the appellant to imprisonment for 12 years and two months, with a non-parole period of eight years and eight months, commencing on 11 March 2020.  The offence carried a maximum penalty of life imprisonment or…

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Tartaglia v The Queen [2022] SASCA 41
Case
[2022] SASCA 41
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction and sentence of the appellant, Tartaglia, for importing a commercial quantity of methamphetamine. The dispute arose from the appellant's alleged involvement in a joint criminal enterprise with one Blokland to import approximately 18 kilograms of methamphetamine, concealed within winch drums, which arrived in Australia via Adelaide Airport. The matter was heard by the Full Court of the Supreme Court of South Australia.

The legal issues before the court were whether the conviction was unreasonable or insupportable having regard to the evidence, and whether the sentence imposed was manifestly excessive. The court was required to consider the appellant's liability for the importation offence under the principles of complicity, specifically joint criminal enterprise, and to assess the appropriateness of the 12-year and two-month sentence with an eight-year and eight-month non-parole period.

The court affirmed the appellant's conviction based on section 11.2A of the Criminal Code Act 1995 (Cth), which establishes liability for conduct committed by a co-offender pursuant to a common intention or agreement. The court reasoned that once the jury was satisfied the appellant had agreed with Blokland to import the methamphetamine and intended its importation, he was equally liable for Blokland's physical actions constituting the offence, irrespective of his direct participation in the physical act of importation. Regarding the sentence, the court found no error in the trial judge's assessment, noting the serious nature of the offence, the significant quantity and street value of the methamphetamine, the sophisticated planning involved, and the need for general deterrence and community protection. The court also considered the appellant's extensive criminal history, which weighed against leniency.

The Full Court granted permission to appeal against conviction on one ground but dismissed the appeal. Permission to appeal against sentence was also granted, but the appeal itself was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The trial Judge sentenced the appellant to imprisonment for 12 years and two months, with a non-parole period of eight years and eight months, commencing on 11 March 2020. The offence carried a maximum penalty of life imprisonment or a fine of 7,500 penalty units,[2] or both. The appellant also appeals against his sentence on the sole ground that it is manifestly excessive.[2] Pursuant to s 4AA(1) of the Crimes Act 1914 (Cth) a ‘penalty unit’ means $210. Therefore, the total maximum pecuniary penalty for an offence against s 307.1 of the Criminal Code Act 1995 (Cth) at the time of offending was $1,575,000.The evidence at trial The appellant and Blokland had known each other since 2014. In February 2018, Blokland became the lessee of 3 Clyde Street, Wingfield. In November 2018, Blokland took over the lease of the neighbouring property, 5 Clyde Street, Wingfield. Therefore, from November 2018, Blokland was the lessee of 3‑5 Clyde Street, Wingfield (the ‘Premises’). The properties are large iron sheds that share a common wall and a common entry from the street to a parking area. On 30 July 2018, a consignment of four-wheel drive recovery winches was delivered to Global Trading Supplies Pty Ltd (‘Global Trading Supplies’) at 76 Hogarth Road, Elizabeth South. Between 24 October 2018 and 5 March 2019, a further 20 consignments of either roller bearings or four-wheel drive recovery winches were delivered to Global Trading Supplies at the Premises. The consignments all originated in Malaysia and arrived in Australia at Adelaide Airport by international flight. On 18 February 2019, Blokland, his son, his son’s girlfriend, his partner, and the appellant flew to Bali. The group returned on 24 February 2019. On arrival in Australia, Blokland’s mobile telephone was viewed by Australian Border Force (‘ABF’) staff. Photographs of crystalline substances were noted to be on the telephone and it was seized. On 28 February 2019, Sandor Machinery SDN BHN issued a commercial invoice for the purchase of 14 four-wheel drive recovery winch kits which were consigned to Global Trading Supplies at the Premises. The freight was prepaid on the consignment. The consignment was delivered into Australia on 5 March 2019. ABF officers attended Adelaide Airport and witnessed the unloading of the pallet and its transfer to a freight forwarder. The consignment was delivered to the Premises at 1:03pm. The Premises were under Australian Federal Police surveillance. Blokland signed for the consignment and used a forklift to remove it from the delivery truck. The consignment was thereafter left untouched on the forecourt of the Premises. On the prosecution case, the appellant was also present on the Premises when the consignment was delivered. At 4:00pm police raided the Premises. At that time, the consignment was unpacked on the forecourt. There was a tracking device on the vehicle that transported the consignment from the airport to the Premises. The consignment contained 14 sealed carboard boxes, each containing a winch. Inside each winch drum, there was a foil package containing a crystalline substance. In total, 18,110.6 grams of a crystalline substance was seized and the substance was approximately 80 per cent pure methamphetamine. There was just over 14.5 kilograms of pure methamphetamine, with a street value of between $4 and $7 million.

Decision

Reasons for decision

We allow permission to appeal and dismiss the appeal against sentence.Conclusion For the reasons set out, we grant permission to appeal against conviction on Ground 1 but dismiss the appeal. We also grant permission to appeal against sentence but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

The trial Judge referred to the lengthy criminal history of both Blokland and the appellant. As to the appellant, his Honour said that because of his poor criminal history, he was not a candidate for leniency and personal deterrence was of particular importance in sentencing. His Honour also considered the appellant’s prospects of rehabilitation to be poor.Consideration The conviction of the appellant by operation of s 11.2A of the Code meant that in accordance with s 11.2A(1), both the appellant and Blokland were to be sentenced for the conduct completed between them (that is, by Blokland) pursuant to their agreement to import methamphetamine. Both were liable to be punished for the conduct of Blokland that established the physical elements of the offence. It follows that it was not necessary for the trial Judge to make any finding as to whether the appellant committed an act of participation in the commission of the offence as regardless, he was equally liable for the physical conduct committed by Blokland. The gravamen of the appellant’s offending was entering an agreement with Blokland to import a border controlled drug and intending that it be imported. Once the jury were so satisfied, the appellant was liable for the conduct of Blokland, which constituted the physical elements of the offence, and was to be punished accordingly. The trial Judge was also correct in finding there was little to distinguish their personal circumstances. Both the appellant and Blokland had significant criminal antecedents and had previously served sentences of imprisonment yet were not deterred from reoffending. Whilst Blokland was found to have had previously been involved in uncharged drug trading, this did little to differentiate their personal circumstances in the context of the appellant’s antecedents. It is also to be noted that the trial Judge sentenced both the appellant and Blokland on the basis the offending was isolated and without having regard to any involvement by either offender in importing prior consignments. For those reasons, we consider there was a sound basis for the trial Judge adopting the same notional head sentence and non-parole period for the appellant and Blokland. In doing so, the trial Judge did not impose a sentence upon the appellant that was manifestly excessive. As to the more general submission that the sentence was manifestly excessive, pursuant to s 16A(1) of the Crimes Act 1914 (Cth), the trial Judge was required to impose a sentence of an appropriate severity in all the circumstances of the offending. As acknowledged by the trial Judge, the offence committed by the appellant and Blokland was a serious example of an offence of its type. There was a vast amount of methamphetamine concealed in the consignment with a street value of between $4 and $7 million. Further, it was a sophisticated and intricately planned operation. The provision of an address and taking delivery of the consignment were integral parts of that operation. Methamphetamine is a drug which causes considerable harm in the community. Principles of both general deterrence and the need for protection of the community from such a harmful drug needed to be properly reflected in the sentence.