Regina v Skorin [2005] NSWCCA 276

New South Wales Court of Criminal Appeal

CITATION: Regina v Skorin [2005] NSWCCA 276

HEARING DATE(S): 14/06/05

JUDGMENT DATE: 11 August 2005

JUDGMENT OF: James J at 1; Howie J at 54; Rothman J at 55

DECISION: Crown appeal against sentence allowed. Respondent re-sentenced

CATCHWORDS: CRIMINAL LAW - sentence - crown appeal - offence of knowingly taking part in the cultivation of not less than a large commercial quantity of cannabis plants - guilty plea - assistance provided by the respondent - the respondent was not at the lowest level of the organisation but was, at least, at some intermediate level - whether sentence imposed was manifestly inadequate

Crimes (Sentencing Procedure) Act Criminal Appeal Act LEGISLATION CITED: Criminal Procedure Act Drug Misuse and Trafficking Act

R v O'Donoghue (1988) 34 A Crim R 397 R v Khouzame [2000] NSWCCA 505 CASES CITED: R v Mills [2005] NSWCCA 175 R v Wall [2002] NSWCCA 42

PARTIES: Regina v Blaz SKORIN

FILE NUMBER(S): CCA 2005/901

Ms VJ Lydiard - Crown COUNSEL: AJ Bellanto QC - Respondent

S Kavanagh - Crown SOLICITORS: Uther Webster & Evans - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1053

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/901 CCAP

JAMES J HOWIE J ROTHMAN J

Thursday 11 August 2005 R v BLAZ SKORIN Judgment 1 JAMES J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act against a sentence imposed on the respondent Blaz Skorin (also known as Bill Skorin) in the District Court on 31 March 2005 by his Honour Judge Puckeridge QC for an offence, to which the respondent had pleaded guilty, of knowingly taking part between 1 June 2002 and 18 March 2003 in the cultivation of not less than a large commercial quantity of cannabis plants. 2 Judge Puckeridge sentenced the respondent to a term of imprisonment of two years two months, with a non-parole period of one year (or, more accurately, slightly less than one year) commencing on 31 March 2005 and expiring on the 27 March 2006. The respondent had been arrested on the 17 December 2003 but had been released on bail on 19 December 2003 and had remained at liberty on bail until he was sentenced. Judge Puckeridge ordered that the non-parole period of the sentence he was imposing should expire on 27 March 2006, so as to take into account the discrete period of three days of pre-sentence custody. Judge Puckeridge sentenced the respondent in accordance with the repealed s 44 of the Crimes (Sentencing Procedure) Act, because the period within which the offence had been committed had commenced prior to 1 February 2003. 3 Pursuant to Div 7 of Pt 3 of Ch 3 of the Criminal Procedure Act Judge Puckeridge also sentenced the respondent on a back-up charge of possessing an unregistered firearm, which was a .177 calibre air rifle. On this charge the respondent was sentenced to the rising of the Court. No complaint was made against this sentence on the hearing of this appeal and this offence can be disregarded. 4 Knowingly taking part in the cultivation of not less than a large commercial quantity of cannabis plants is an offence under s 23(2)(a) of the Drug Misuse and Trafficking Act for which the maximum sentence under s 33(3)(b) of the Act is imprisonment for a term of twenty years or a fine of 5,000 penalty units or both. 5 The respondent had pleaded guilty to the drug offence in the Local Court on 13 August 2004 and was committed for sentence to the District Court. He first came before Judge Puckeridge on 18 November 2004. 6 On 18 November 2004 an agreed statement of facts not in dispute was tendered and became exhibit B in the proceedings on sentence. This statement of facts not in dispute was, subject to the qualifications I am about to mention, in the terms set out hereunder. The qualifications are that I have omitted certain parts of the statement which would appear to be of little or no significance and in some cases I have summarised in brackets, rather than quoted, paragraphs in the statement. I have retained the paragraphing in the exhibit and the references to the respondent as "the prisoner". The statement reads:- "1. The Prisoner is married with two small children (six and one years of age) and operates a delicatessen at Concord owned by his parents. 2. On 15 March 2003, Police executed two Search Warrants upon neighbouring properties in the Fifield area. Fifield is situated about 90km north west from the township of Parkes. Fifield consists of a small hamlet, surrounding farm and bushland. 3. Search Warrant 1 was executed upon property Hippy Valley. Search Warrant 2 was executed upon property Emu Plains. 4. On the property Hippy Valley, Police located two separate cannabis plantations of mature plants each site-fed by an irrigation system which was sourced from the neighbouring property Emu Plains. ……………… 6. On Monday, 17 March 2003, application was made and granted at Forbes Magistrate's Court for the destruction of 6,765 cannabis plants which were burnt on the site later that day. The estimate of the crop's value is in the vicinity of millions of dollars. 7. Emu Plains is owned by Giuseppe Mammone, date of birth: 7 November 1931. Hippy Valley until a short time prior to 15 March 2003, was owned by Skorin Holdings of which the Prisoner, Bill Skorin, date of birth: 10 February 1974, is a director. 8. Bill Skorin is the nephew of Giuseppe Mammone. 9. Hippy Valley was transferred to Luca Badalamenti on 17 January 2003. The person, Luca Badalamenti cannot be located. 10. (The respondent was arrested on 17 December 2003). 11. Bill Skorin agreed to partake in an electronically recorded interview in which the Prisoner stated he did not own the property "Hippy Valley". 12. The Prisoner denied any knowledge of the cannabis crop. 13. (Three firearms were found in a gun safe at the respondent's home, one of which was unregistered). 14. The Prisoner's involvement in the set up and growing of the marijuana crop at Hippy Valley, includes the following: (a) Organising and supplying various items of equipment to the plantation workers, including sleeping bags, and the vacuum packing machine for the cutters who were to harvest the crop. (b) Food was supplied from Skorin Delicatessen through Giuseppe Mammone, Tony Greco and Nunzio Mangano, on several occasions, for the three workers, who stayed most of the season at the crop site. (c) The Prisoner rang a number of places and located the large marquee style tent, (subsequently set up by others to house the drying racks on which the marijuana was to be dried before packaging). (d) Supplying a vacumatic brand packaging machine for wrapping the dried crop. 15. Involvement in the following activities (revealed from lawfully intercepted telephone conversations with co-defendants and other persons recorded between the period 27 February 2003 to end March 2003 by the New South Wales Crime Commission): (a) Conversations with various persons in early March 2003 discussing the organising of workers for the harvesting of the crop; (b) Organising a check by his sister, Antoinella on the identity of a vehicle seen in the vicinity of the crop site on or about 14 March 2003 and reporting to the co-defendant, Mangano that it was a government vehicle; (c) Attending a meeting with co-defendants, Tony Greco and Giuseppe Mammone and two workers (including Ramsay) near Strathfield Railway Station on 15 March 2003 following news of the Police raid on the plantation (discussing whether it was crop-raiders rather than police); (d) Discussing with co-defendant, Mangano on 16 March 2003 whether the plantation site is still being watched and whether it was safe to go up there or not; (e) Discussing the sleeping bags with his wife on 11 March 2003 (the day they were bought from Boots Outdoor World at Lidcombe); (f) Reporting to co-defendant, Giuseppe Mammone on 3 March 2003 how a neighbour at the plantation (the witness, Andrew Knopp) had complained to co-defendant, Valensise (who was on the plantation site at the time) about possible incursions into their properties by animal shooters/hunters; (g) Attending a meeting at Kemps Creek on 14 March 2003 with co-defendants Mammone and Mangano to discuss something that had arisen up at the plantation site (possibly the government vehicle visit); (h) Warning co-defendant, Giuseppe Mammone on 16 March 2003 (who was driving up to the plantation site to see if it was still under surveillance), that the raid was on the computer and to come back and not to go there. 16. Items seized by the police from the site linking the Prisoner Skorin to the site included a note saying, "Tell Bill the cutters need sleeping bags", spices with name of Skorin's business on them, "Skorin Deli", sleeping bags from Boots similar to one found at Skorin's home and a vacumatic packaging machine bought by Skorin Deli". 7 The statement of facts not in dispute left outstanding some issues between the parties, including the level of the respondent's role in the criminal organisation and, in particular, whether, as the Crown contended, he had been a principal and whether the respondent had known, for certain, prior to December 2002, that cannabis plants were being cultivated on the property "Hippy Valley". Oral evidence on these issues was adduced on 18 November 2004, 19 November 2004 and 10 March 2005. The Crown called as a witness a man named Ramsey, who gave lengthy evidence-in-chief and who was extensively cross-examined by counsel for the respondent, and a man named Chalmers, who gave little or no evidence of any significance. The respondent gave lengthy evidence in his own case and was extensively cross-examined by the Crown's representative in the proceedings on sentence. The respondent also called as a witness a person who gave brief evidence that he had witnessed the signatures on the transfer of the property "Hippy Valley" from the respondent to Badalamenti. 8 In his remarks on sentence his Honour summarised some of Ramsey's evidence and the following summary of parts of Ramsey's evidence is taken from his Honour's remarks on sentence. 9 Ramsey gave evidence that in August 2002 he had received a telephone call from the respondent in which the respondent asked Ramsey if Ramsey wanted to do some work. Shortly afterwards Ramsey and the respondent had a meeting at a hotel. At this meeting the respondent asked Ramsey again if he wanted to do some work and after Ramsey had replied in the affirmative the respondent said, "we are going out to the property and growing dope". The respondent told Ramsey that, if he worked at the property, he would be paid $100,000.00 clear at the end of the venture. 10 Ramsey gave evidence that he went to the property "Hippy Valley" in August-September 2002. At the property Ramsey organised two plantation sites and carried out fencing and irrigation works. 11 Ramsey said in his evidence that the respondent had come to the property on a number of occasions. On these visits the respondent supplied food for Ramsey and his fellow workers. On these visits the respondent looked at the plantations and asked Ramsey questions such as what was being done by way of fertilising and irrigating the plants. At the end of February 2003 the respondent bought tents to the property to accommodate the additional workers who would be participating in the harvesting of the crop. 12 Ramsey was permitted by his Honour to give evidence that in the previous year he had been enlisted by the respondent in September 2001 to work in the cultivation of a large plantation of cannabis plants on the neighbouring property "Emu Plains" and that he had worked on the site in the cultivation of that plantation. His Honour ruled that, although the respondent had not been charged with and was not being sentenced for any offence in connection with this earlier plantation, Ramsey's evidence about the earlier plantation was admissible, as being relevant to determining the extent and duration of the respondent's involvement in the cultivation which was the subject of the charged offence. 13 In his remarks on sentence the sentencing judge summarised the respondent's evidence in the proceedings on sentence by saying that the respondent denied that he had enlisted Ramsey and the respondent asserted that his role in the cultivation of the cannabis plants had been limited, that he had attended meetings and carried out activities only at the bidding of his uncle Mr Mammone and had been overborne by his uncle and that his involvement in the cultivation of the plants had been limited to a period from December 2002, when he first knew for certain that cannabis plants were being cultivated on the property. 14 In the proceedings on sentence it was submitted by counsel for the respondent that the sentencing judge should not accept Ramsey's evidence, on grounds which included that some of the evidence Ramsey had given in the proceedings on sentence had not been included in statements he had previously made to the police, Ramsey had a criminal history including convictions for drug offences and Ramsey had been given an indemnity against prosecution for anything he had done in the cultivation of the cannabis plants. 15 In his remarks on sentence Judge Puckeridge said that it was necessary to look at Ramsey's evidence with caution. His Honour expressed doubts about some of the matters of which Ramsey had given evidence. However, his Honour decided that he should not reject the whole of Ramsey's evidence. His Honour proceeded to make findings that he should accept Ramsey's evidence that Ramsey had been enlisted by the respondent, such a finding being inconsistent with the respondent having a merely limited role in the cultivation of the cannabis plants, and that the respondent had made visits to the property to see how the cultivation of the plants was proceeding. 16 In his remarks on sentence the sentencing judge said that he accepted that "the prisoner may well have been imposed on by other members of his family, out of a mistaken sense of family loyalty" but that "nevertheless, I consider that he was a willing participant in the cultivation". His Honour did not make any specific finding about the position of the respondent in the criminal organisation responsible for cultivating the cannabis plants. 17 I will now turn to some of the subjective features of the respondent. The respondent was born on 10 February 1974. He is a married man with two children, who, until he was imprisoned, operated a delicatessen. He had no previous criminal convictions. In his remarks on sentence the sentencing judge said that he considered that any contrition the respondent felt stemmed from the position in which he had placed his family rather than from any regret about his part in the cultivation of the plants. 18 Two letters from the New South Wales Crime Commission dated 18 November 2004 and 10 March 2005 about assistance provided by the respondent to law enforcement authorities were placed before his Honour. A further letter from the New South Wales Crime Commission dated 24 June 2005 was forwarded to this Court after this Court had reserved its decision on the Crown appeal. 19 In his remarks on sentence the sentencing judge explained how he had arrived at the sentence he was imposing. His Honour considered that, but for the plea of guilty and the assistance provided by the respondent, an appropriate sentence would have been imprisonment for five years. His Honour found the respondent was entitled to a full discount of 25 per cent for the utilitarian value of his early plea of guilty, thus reducing the putative sentence to a sentence of imprisonment for three years nine months. 20 His Honour found that the assistance the respondent had provided to law enforcement authorities had been "significant" and, because of that assistance, his Honour further reduced the sentence to a sentence of imprisonment for two years two months. His Honour then held that there were special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act, being that the respondent had no previous criminal convictions, that the respondent because of the assistance he had provided would serve his sentence in protective custody and what his Honour described, without further specifying, as the matters referred to in a psychologist's report about the respondent. 21 The psychologist's report in part observed that the respondent's day to day life was associated with high levels of anxiety, stress and repressed anger with the respondent lacking in appropriate ways to respond to these. Further, the respondent appeared strongly driven by his perceived cultural responsibilities to maintain and support his immediate and extended family, to improve their wealth status, to protect them and solve their problems, but simultaneously the respondent appeared to feel angry and resentful of these expectancies and responsibilities. 22 By letter dated 11 April 2005 the Director of Public Prosecutions gave notice to the respondent that the Director was considering an appeal against the sentence imposed on the respondent. The notice of appeal was filed on 13 May 2005 and served on the respondent on the same date. 23 The principal submission made by the Crown in support of the appeal was that the sentence imposed on the respondent was manifestly inadequate. 24 In support of this general submission the Crown pointed to the large number of plants being cultivated, to the planned and organised nature of the criminal enterprise, to the period of several months during which the plants had been cultivated and to the estimated value of the crop as being millions of dollars. 25 It was submitted by the Crown that, although the sentencing judge had not made any express finding about the position of the respondent in the criminal organisation, parts of the undisputed statement of facts and the findings the sentencing judge did make as a result of Ramsey's evidence indicated that the respondent was at a high level in the criminal organisation.