R v Andrea Rocco [2001] NSWCCA 124

New South Wales Court of Criminal Appeal

CITATION : R v Andrea Rocco [2001] NSWCCA 124 FILE NUMBER(S) : CCA 60213/00 HEARING DATE(S) : 06/03/01 JUDGMENT DATE : 6 March 2001

Regina PARTIES : v Andrea Rocco JUDGMENT OF : Meagher JA at 1; Hulme J at 27; Smart AJ at 30

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0084 LOWER COURT JUDICIAL Shillington DCJ OFFICER :

COUNSEL : Applicant: G J Drake Crown: C O'Donnell SOLICITORS : Applicant: Peter Ash & Associates Crown: Commonwealth Director of Public Prosecutions CATCHWORDS : Criminal law - importation of prohibited substance - appeal against conviction - direction to jury - circumstantial case - appeal against severity of sentence - principle of parity - appeal dismissed. LEGISLATION CITED : Customs Act (1901) s 233B (1) (d) Proceeds of Crime Act (1987) CASES CITED: Chamberlain (No 2) 153 CLR521 at 606-7 DECISION : Application dismissed both as to sentence and as to conviction.

SUPREME COURT OF NEW SOUTH WALES CRIMINAL COURT OF APPEAL CCA 60213/00 MEAGHER JA HULME J SMART AJ

Tuesday, 6 March 2001

REGINA v ANDREA ROCCO

JUDGMENT 1 MEAGHER JA: The appellant, Mr Andrea Rocco, was found guilty by a jury on 30 March 2000 of a charge under s 233B (1) (d) of the Customs Act (1901) in that he was knowingly concerned in the importation into this country of a commercial quantity of MDMA or ecstasy. The maximum sentence for such an offence is life imprisonment. The commercial quantity applicable to MDMA is 0.5 kilograms. The gross weight of the tablets involved was 17.224 kilograms (approximately 70,135 tablets). The net weight was calculated to be 4.027 kilograms. 2 On 14 April 2000 the appellant was sentenced by his Honour Judge Shillington QC to thirteen years imprisonment with a non-parole period of nine years, both to date from 21 October 1998. An order was also made under the Proceeds of Crime Act (1987) that $US3,100 in his possession was an asset to be forfeited. 3 The appellant arrived in Australia on 13 October 1998. On 15 October 1998 he and one Mordechai Cohen visited Control Customs at Mascot, a suburb of Sydney, and showed them paperwork in respect of a shipment of water pumps which were consigned from France to a firm at Mona Vale. The crates containing two boxes, each of which had a water pump, arrived on 18 October and were loaded at the Ansett Bond Store. 4 On 17 October the appellant went to a storage unit at Hornsby. On 19 October he and Mordechai Cohen attended the Thrifty Car Rental office at Hornsby and hired a Mitsubishi van in the appellant's name. 5 On 20 October the crate was inspected by customs officers, who located inside the water pumps 17.2224 kilograms of MDMA tablets. They were replaced with substitute tablets in a small controlled delivery sample. On 21 October the crates containing the two boxes of pumps were taken from Ansett to Control Customs. The appellant went there and loaded the crates onto the Thrifty van. 6 At about 11.15 am the appellant drove the rented van to the storage unit at Hornsby, followed by Mr Mordechai Cohen in his Tarago and, unbeknownst to both of them, the police. They then unloaded the crate and left it at Hornsby. They then travelled to Mona Vale in the Tarago, having returned the Thrifty van. 7 They returned to Hornsby at 2.09 pm, in the meantime having engaged in a route which I cannot understand through suburbs which I have never heard of. At 2.09 they loaded the two pumps into the hired van and continued in the Tarago, then continued their wandering until eventually, at St. Ives, this vehicle was stopped by the police. There, evidence indicative of the imported goods was discovered. 8 This was a case in which the appellant, Mr Rocco, gave evidence. He is South African. In that country he operated a clothing and jewellery box importing business. He was a friend for a while of a man named Margolit, with whom he subsequently had a dispute, and he then resumed his friendship with that man in 1997, by which time Mr Margolit had AIDS. He, Mr Rocco, knew that Mr Margolit had previously travelled to the united States and to Australia in 1998 with a friend called Steinway. Mr Rocco went into partnership in South Africa with a man called Barbaglia. 9 In June/July 1998 Mr Margolit introduced Mr Rocco to Mr Mordechai Cohen. In September 1998 Mr Margolit, being too ill to do so himself, asked the appellant to take his place in assisting Mr Cohen to smuggle diamonds into Australia. In doing so he was to receive the sum of $8,000. 10 He then went to Amsterdam, where Mr Cohen was temporarily situate and he gave Mr Cohen $75,000. Both the appellant and Mr Cohen then returned to Sydney separately and the rest is history, the appellant believing, according to him, that the pumps in question contained diamonds. 11 In cross-examination Mr Rocco said that in the travelling between Mascot and Hornsby Mr Cohen was always visible throughout the whole proceedings. He also seemed to agree that his role as assistant to Mr Cohen could have been performed by a courier company. He also toyed with assenting to the proposition that there was no need for him to come to Australia at all. 12 In these circumstances, the court has to deal with three grounds of appeal. 13 The first ground of appeal emerges from a question which was asked by the jury. The question asked by the jury was put this way: "Please explain why the jury have not heard evidence from Cohen, then Margolit, Steinway, Barbaglia or persons associated with Group Hefna to substantiate Rocco's testimony of no knowledge of MDMA in the pumps?" 14 Whilst the question itself looked at in isolation has a certain internal logic, the fact is, as everyone agrees, Mr Rocco was under no obligation to substantiate his story at all. He was under no obligation to call any of those gentlemen or anybody else. He had given his story and it was a question for the jury whether they believed it or not. In the process of disbelieving it they could not as a matter of law have placed any reliance on the fact that none of those gentlemen had given evidence. 15 Indeed, his Honour had in effect directed them to this extent, not once, not twice, but about eight times, and told them that the Crown had the onus of proof, which was a heavy onus and involved proof beyond reasonable doubt. He also, at least inferentially, told them that that being so there was no obligation on Mr Rocco either to give evidence or to call anyone else to give evidence. 16 In answer to the question which the jury transmitted to his Honour, his Honour said in effect he would not deal with it, but they must not speculate. They would be speculating if they tried to work out the reasons for not calling these people and he also told them they were obliged to deal with the case on the evidence as it stood. 17 All those directions were correct. There was no objection to the original directions his Honour gave and what his Honour was doing when he received the note was simply saying to them in effect, "Go back and make your decision in accordance with the directions I have already given you." 18 In those circumstances, and viewed in that light, I cannot see that the ground has any chance of success. 19 The second ground was it was not put sufficiently clearly to the jury that the story espoused by the accused, the story of imported diamonds, was of such a kind that it must have raised a reasonable doubt when the jury was considering the guilt or otherwise of Mr Rocco on the charge of importing ecstasy. 20 In my view, this ground must fail. The plain fact of the matter is that the Crown put forward evidence which made a strong circumstantial case for the involvement of Mr Rocco in the importation of the ecstasy. In answer to that, Mr Rocco put forward a very curious and not inherently credible story about how his involvement arose. It was the jury's province to agree or disagree with Mr Rocco's story. 21 Plainly they rejected it. Plainly they were entitled to and I should have thought on the evidence they were almost bound to. However, once they had rejected it, it cannot be said that the jury misdirected itself in accepting the Crown case, circumstantial though it may be. 22 Brennan J said in Chamberlain v R (1984) 153 CLR 521 at 606-7: "Whether the jury has too readily rejected innocent inferences is not demonstrable in a case where a jury, impartially applying its critical judgment of men and affairs, could have drawn the guilty inference." 23 The third ground of appeal relates to sentence. In this regard Mr Cohen, who was tried, was sentenced by his Honour Judge Howie to ten years imprisonment with a six year non-parole period. Judge Shillington sentenced Mr Rocco to thirteen years imprisonment with a nine year non-parole period. 24 It has been put to us by Mr Drake in a very able argument that there is a significant disparity between the two sentences. 25 With respect, there does not seem to me to be a disparity of sufficient importance to entitle this Court to intervene. The great difference between the two criminals was that in Mr Cohen's case there was a plea of guilty, and the fact there was a plea of guilty must account for a significant part of the disparity. The balance of the disparity is accounted for by differing views between the two judges as to the comparative fault of the two parties. It is simply not true that his Honour Judge Shillington disregarded any doctrine of parity, or disregarded any High Court decision on that point. He obviously gave the most patient attention to everything that could be said or thought of in this regard. 26 In my opinion, the application should be dismissed both as to sentence and as to conviction. 27 HULME J: I agree with the orders proposed and, subject to one matter, with the reasons advanced. 28 In relation to the second ground I would prefer to express the matter, albeit shortly, in my own words. 29 The appellant's activities related to what was in fact ecstasy. That fact and the extent of his activities clearly justified the inference that he knew that it was ecstasy he was dealing with. The fact that he provided an alternate explanation, which the jury were fairly entitled to reject, does not remove their entitlement to act upon the basis of the simple fact that what he dealt with was ecstasy and to draw the appropriate inference of guilt therefrom. 30 SMART AJ: I agree with the reasons given by the Presiding Judge and I also agree that the appeal against conviction should be dismissed and the appeal against sentence should also be dismissed. 31 MEAGHER JA: Those are the orders of the Court. ******