Regina v Valensise [2006] NSWCCA 315

New South Wales Court of Criminal Appeal

CITATION: Regina v Valensise [2006] NSWCCA 315

HEARING DATE(S): 21 August 2006

JUDGMENT DATE: 10 October 2006

JUDGMENT OF: Grove J at 1; Kirby J at 18; Hislop J at 19

DECISION: CROWN APPEAL ALLOWED; RESPONDENT RESENTENCED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - CANNABIS CROP CULTIVATION - LARGE COMMERCIAL QUANTITY - ROLE OF PARTICIPANT - SEPARATE MATTERS ON FORM 1 - INADEQUACY - MAJOR CRIMINAL ENTERPRISE - SENTENCE INCREASED

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 2002 56 NSWLR 146 CASES CITED: Olbrich v The Queen 1999 199 CLR 270 Power v The Queen 1974 131 CLR 623

PARTIES: Regina v Gino Valensise

FILE NUMBER(S): CCA 2006/1198

COUNSEL: W. Dawe QC (Crown/Appellant) W. Barber (Respondent)

SOLICITORS: S. Kavanagh (DPP)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0351

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

LOWER COURT DATE OF DECISION: 13/04/06

LOWER COURT MEDIUM NEUTRAL CITATION: n/a

IN THE COURT OF CRIMINAL APPEAL 2006/1198

GROVE J KIRBY J HISLOP J

10 October 2006 REGINA v GINO VALENSISE Judgment

1 GROVE J: This is a Crown appeal asserting the manifest inadequacy of sentence imposed upon the Respondent by Puckeridge DCJ on 13 April 2006 at Sydney District Court. The Respondent was committed for sentence following his plea of guilty in Central Local Court to a charge of knowingly taking part in the cultivation of a large commercial quantity of a prohibited plant (cannabis sativa) for which the prescribed maximum penalty is imprisonment for twenty years and/or a fine of $550,000. His Honour was asked to take into account on a Form 1, three charges of deemed supply of prohibited drug, namely 978.7 grammes of cannabis leaf (the indictable quantity is 1000 grammes); 87.5 grammes of methylenedioxymethylamphetamine (the indictable quantity is 1.25 grammes) and 7.18 grammes of methylamphetamine (the indictable quantity is 5 grammes). The cultivation which was the subject of the principal charge consisted of 6,795 plants. 2 His Honour sentenced the Respondent to imprisonment consisting of a non parole period of eight months thirty days and a balance term of twenty one months and one day. The sentence was directed to commence on the day of imposition and the period arrived at by taking into account one month one day of pre-sentence custody undergone by the Respondent after his arrest and prior to entry into bail. 3 The Respondent stood for sentence upon an agreed statement of facts which incorporated the charges on the Form 1. The facts were: "On the 15 March 2003 police executed two search warrants on neighbouring properties in the Fifield area, about 90 kilometres north west of Parkes. The first warrant was executed on the property 'Emu Plains'. The second warrant was executed on a property 'Hippy Valley' where police located 2 cannabis plantations of mature plants fed by an irrigation system sourced from 'Emu Plains'. A total of 6,765 cannabis plants were located. The estimated value of the crops was $13,880,000. There was a site on 'Happy Valley' (sic) with a large blue and white marquee tent covering racks with Hessian attached, a toilet block, tents, caravan, large work site office, large generator and other items consistent with accommodation and facilities for workers to occupy to harvest and dry the cannabis plants. 'Emu Plains' is owned by Guiseppe Mammone, date of birth 7 November 1931. 'Hippy Valley' was, until a short time prior to the 15 March, owned by Skorin Holdings, of which Bill Skorin (date of birth 10 February 1974) was a director. Bill Skorin is the nephew of Guiseppe Mammone. 'Hippy Valley' was transferred to Luca Badalamenti on 17 January 2003. The person Laca Badalamenti, is not know (sic) to exist and is believed by police to be an alias for Bill Skorin. The plants located by police at 'Hippy Valley' were initially propagated at the Dubbo property, 'Terrabella'. Ignazio Mangano transported the seedlings from 'Terrabella'. Mr Mangano also brought fertiliser and provided advice on occasions concerning the growing of the crop. The accused was one of 3 men, the others being John Ramsay and Geoff Kelly, who set up camp on 'Hippy Valley', prepared the 2 sites for planting, planted the seedlings, watered and fertilised the crops, helped build the drying racks and set up facilities for the cutters to live when the crops were to be harvested. This commenced in August/September 2002 and was still continuing until just before police executed the warrants. The accused with Geoff Kelly hired a Jaden Mini Loader with auger attachment that was used to dig the holes for the plants. Bill Skorin brought food and supplies to the property but the accused and the other 2 males did on occasions leave the property to buy additional supplies and for other reasons. The accused used the phone in the house on 'Emu Plains' to make phone calls. A neighbour spoke to the accused when he was at the house on 'Emu Plains' about shooters coming through a broken fence on 'Happy Valley' (sic) onto his property. There is a telephone intercept of Skorin telling Mammone about 'Ginos' dealings with the neighbours. The accused fled the property when there were signs the crop had been discovered. The accused was arrested at a unit at Parramatta on the 8 June 2004. The person John Ramsey has been granted an Indemnity. The person Geoff Kelly has not been apprehended. The person Skorin has been sentenced. The person Mangano is awaiting sentence on another crop with this crop to be taken into account on a form 1. The person Mammone has pleaded guilty on his trial date and is listed for sentence. FORM 1 CHARGES When the accused was arrested on the 8 June 2004 a search warrant was executed on unit 6, 5 Robinson Road, Parramatta that was occupied by the accused and his girlfriend. Located in the unit was 1. 978.7 grams of cannabis leaf. 2. 87.5 grams of 3,4-Methylenedioxymethylamphetamine 3. 7.18 grams of Methylamphetamine. The DNA of the accused was located on the packaging of the 87.5 grams of Methylenediosymethylamphetamine an (sic) 441 grams of the cannabis leaf." 4 The outcomes in relation to other offenders as mentioned in those facts should be noted. Ramsey was granted an indemnity, presumably in response to information and potential evidence to inculpate others, and he was not prosecuted. Kelly has not been apprehended. Mangano was dealt with in respect of a different cultivation on another property which was near Dubbo and had his participation in this offence taken into account on a Form 1 when he was sentenced in respect of the other matter. Mammone pleaded guilty on the day fixed for his trial to the identical offence as the respondent of knowingly taking part in the cultivation of a large commercial quantity of cannabis. Mammone was also sentenced by Puckeridge DCJ and he imposed sentence consisting of a non parole period of two years six months and a balance term of two years eight months twelve days. At the time of this offence Mammone was on parole. He was aged seventy four years. On a Crown appeal to this Court, differently constituted, his sentence was increased to imprisonment consisting of a non parole period of three years six months and a balance term of two years two months. 5 Skorin pleaded guilty to a charge similar to that against the respondent save that the span of time over which he was alleged to be knowingly concerned was two months longer than that alleged against the respondent. Evidence was called at his sentence hearing concerning a dispute as to his level of involvement. This included evidence from Ramsey. Puckeridge DCJ imposed a sentence of imprisonment consisting of a non parole period of one year and a balance term of one year two months which was increased on Crown appeal to this Court, again differently constituted, to imprisonment consisting of a non parole period of two years and nine months and a balance term of one year nine months. 6 In assessing sentence to be imposed on the respondent, his Honour nominated a starting point of total sentence of three years four months. The Crown contends that this was so low as to be below the range available within the sound exercise of discretion. I consider that this submission has been made good. 7 This was a major criminal enterprise and the actual crop exceeded by a multiple of six of that required to constitute a large commercial quantity. The estimated value of the crop in the agreed facts confirms the scale of operations. For about six months, the respondent was variously engaged in setting up accommodation and equipment for necessary workers and the use of equipment for planting and development of the crop towards the intended harvest. It understates the real content of his activity to describe him as a mere "crop sitter". He is to be sentenced for what he has actually done rather than merely as a reflection of some position within a criminal hierarchy: Olbrich v The Queen 1999 199 CLR 270. 8 Puckeridge DCJ applied a "discount" of 25 percent to his assessment to take into account the respondent's early plea of guilty. No error is revealed in his so doing and it should be maintained if this Court resentences. 9 There is a further factor which is, in my view, demonstrative of the inadequacy of the starting point selected by his Honour and that is the difficulty in perceiving that any real weight has been given to the matters on the Form 1. The offences scheduled therein were far from trivial. They revealed involvement of the respondent with other forms of drug in addition to the growing crop and, in the case of the first charge, involvement with cannabis which had in fact been harvested. To take these offences into account there should have been some increase in the penalty which would have been appropriate for the principal offence: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 2002 56 NSWLR 146. 10 It is submitted by the Crown that there is further error in his Honour's imposition to be found in the excessive granting of favour to the respondent in fixing a ratio between non parole period and total sentence. That specified in the sentencing legislation was departed from upon a finding of special circumstances and there is no challenge to this finding as such. But the consequence of his Honour's application was that the period in actual custody was equivalent to only about one third of the total term, which is in marked contrast to three quarters of total term which would be the case if the statutory ratio had been applied. 11 The reasons given by his Honour for this specification were the available employment for the respondent with his brother upon release and a need for supervision whilst he was in fact on parole. The Crown Prosecutor in this Court commented that there is no reason to think that the employment with the brother was not available during the six months or so that the respondent devoted himself to criminal activity in developing the cannabis crop. It was necessary for his Honour to determine what was the minimum period of detention called for by the commission of this crime, taking into account the Form 1 matters, and a period of ten months could not fulfil this requirement particularly when regard is had, not in the least, to the respondent's active participation in a major, sophisticated, continuing criminal enterprise: Power v The Queen 1974 131 CLR 623. 12 On behalf of the respondent it was submitted that intervention was not called for by reason of his low level of involvement and his subjective circumstances, in particular that in the long period between arrest and sentence he had achieved rehabilitation. It is true that the respondent's level of involvement was less than that of others. Insofar as it was submitted that attention should be paid to the sentences received by co-offenders, I would accept that the respondent should be dealt with less severely than they were. From a different point of view, the gap between the terms received by the respondent when compared with those received by the co-offenders (after appeals) might be regarded as fortifying a conclusion that his sentence was manifestly inadequate. 13 It appears to have been common ground that the long delay in the respondent's appearance for sentence was provoked by a Crown desire to deal with the co-offenders first, but there is no reason to conclude that the respondent was not content to remain at liberty and on bail during the extended period. It was not sought by him to accelerate the proceedings and no doubt, as the Crown Prosecutor observed, had the respondent expressed a desire to be sentenced, he would have been accommodated. I do not consider that delay is a factor which operates against the Crown being granted the intervention by this Court which it seeks. 14 Puckeridge DCJ made findings favourable to the respondent concerning absence of significant record and prior good character, remorse, unlikelihood of further offence and rehabilitation. These findings were clearly open and should be re-applied in any sentence reassessment. 15 However, for the reasons already canvassed, I consider the ground that the sentence was manifestly inadequate has been made out. I would adopt his Honour's finding in regard to special circumstances. The period of one month one day pre sentence custody should be more conveniently taken into account by commencing the sentence on 12 March 2006 rather than 13 April 2006 which will avoid the somewhat awkward ratios which would be reduced to months and days. 16 Allowing for the restraint to be exercised when proceeding to resentence after successful Crown appeal, I would assess a starting point of imprisonment for a total of four years six months reduced to three years four months to apply a discount of 25 percent for the plea of guilty (slightly rounded down in favour of the respondent). As previously stated, I would find special circumstances but apply a ratio different from that selected by his Honour. After appeal, the ratio in the cases of both Mammone and Skorin involved a non parole period of approximately 60 percent of total sentence whilst the factors in each case are different, I would regard that ratio as appropriately indicative for the respondent. 17 I propose the following orders: