New South Wales Court of Criminal Appeal CITATION: Martinelli v Regina [2009] NSWCCA 175 HEARING DATE(S): 23 June 2009 JUDGMENT DATE: 23 June 2009 JUDGMENT OF: Spigelman CJ at 1, 46; McClellan CJatCL at 44; Johnson J at 45 DECISION: 1 Leave to appeal granted. 2 Appeal dismissed. CATCHWORDS: CRIMINAL LAW - sentence - relevant factors - nature and circumstances of offender - gambling addiction – objective seriousness of offence – no evidence of compulsion or obsession or direct link to offending - CRIMINAL LAW - sentence - purpose of sentence – deterrence – overall criminal history indicated that personal deterrence was a matter entitled to weight - CRIMINAL LAW - sentence - sentencing procedure - material relevant for determining appropriate sentence - pre-sentence reports – trial judge entitled to doubt comments in pre-sentence report LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 R v Cavallin (Victorian Court of Appeal, 24 July 1996, unreported) R v Petrovic [1998] VSCA 95 CASES CITED : R v Molesworth [1999] NSWCCA 43 R v Novak (1993) 69 A Crim R 145 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 PARTIES: Nicholas Martinelli (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2008/7595 COUNSEL: A J Bellanto QC (Applicant) L Babb SC (Respondent) SOLICITORS: Bilbie Dan Solicitors (Applicant) Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/7595 LOWER COURT JUDICIAL OFFICER: Coolahan DCJ LOWER COURT DATE OF DECISION: 3 September 2008 - 10 - IN THE COURT OF CRIMINAL APPEAL CCA 2008/7595 SPIGELMAN CJ McCLELLAN CJ at CL JOHNSON J Tuesday 23 June 2009 Martinelli v Regina Judgment 1 SPIGELMAN CJ: The applicant seeks leave to appeal against a sentence imposed upon him by his Honour Judge Coolahan in the District Court on 3 September 2008. 2 The applicant pleaded guilty to one count of supplying a commercial quantity of amphetamine under s 25(2) of the Drug Misuse and Trafficking Act 1985 ("the Act"). There were also two Form 1 offences taken into account for supply and possess a prohibited drug, namely 28 grams of cocaine contrary to s 25(1) and s 10(1) of the Act respectively. 3 The maximum penalty for an offence under s 25(2) of the Act is 20 years imprisonment or a fine of $385,000 or both. There is a standard non–parole period of 10 years. The maximum penalties for the Form 1 offences are 15 years imprisonment and/or a $220,000 fine for supply and two years imprisonment and/or a $2,200 fine for possession. 4 His Honour found the plea was entered at the first opportunity and applied a 25 percent discount on sentence on the basis of its utilitarian value for the administration of justice. 5 The applicant was sentenced to a non-parole period of seven years to date from 13 October 2007 and to expire on 12 October 2014, with a balance of term of three and a half years to expire on 12 April 2018. 6 The hearing on sentence proceeded on the basis of an agreed set of facts which were summarised by his Honour. With respect to the retail drug supply business that the applicant had conducted, his Honour said: "The offender operated this business in a joint criminal enterprise with his brother and they utilised complicated strategies and techniques in an attempt to conceal their drug supply business. Some of these methods included the use of mobile phones registered in fictitious names and false addresses, the use of multiple mobile phone services in an attempt to prevent telephone interception by authorities, the use of code words when organising drug transactions, using the Italian language when arranging to source drugs and money, discussing with co-offenders various methods to avoid being stopped by police when transporting drugs, such as using taxis. In addition, the offender discussed with co-offenders methods of secreting drugs in his motor vehicle to avoid police detection; also arranging drug transactions with clients in shopping complexes, registered clubs, hotels and public streets, to reduce vehicular and pedestrian traffic to his home; and the offender also used electronic monitoring and surveillance equipment at his residence. … [T]he offender operated a business of supplying prohibited drugs, including amphetamines and cocaine. The offender had more than 3,000 relevant telephone calls intercepted on eight different telephone services which relate to his drug activities. The drug supply business operated by the offender was a daily operation between October 2006 and September 2007, involving many different clients who used well over sixty different telephone services. … The offender was engaged in the business of supplying drugs, not just to street users, but to other suppliers. The business was extremely active, extensive and sophisticated … He was a mid to higher level drug supplier … and the supply was … for profit." 7 On the issue of gambling and drug use, it is pertinent to note his Honour's specific observations. He said: "On his own admission, he is not a drug user and the supply was, obviously, therefore, for profit, perhaps to fund a gambling habit, but, in the absence of specific evidence of this, I cannot say." 8 After referring to the importance of general deterrence and the protection of the community in sentencing for drug offences, his Honour indicated that a full time custodial sentence was required for this kind of offence, except in the most exceptional circumstances. 9 With respect to subjective matters his Honour said: " … His criminal history begins in 1969 when he was fined for being the keeper of a common gaming house. In the 1980s and 1990s there are a number of convictions for similar types of offences. He was also dealt with for some serious driving matters. In 2001 he was placed on a s 9 bond for having goods in custody, fined for possessing a prohibited drug and ordered to perform community service for supplying a prohibited drug other than cannabis. On 22 April 2004 at this Court he was sentenced to periodic detention for twelve months with a non-parole period of six months for supplying a prohibited drug other than cannabis." 10 The applicant did not give evidence, but a pre-sentence report (Pre-Sentence Report, 21 August 2008) was tendered which his Honour characterised as "… of no use whatsoever. … none of the subjective material is relevant to the issue of sentence and, in any event, it is not supported by any independent evidence". His Honour referred particularly to the following statement as a "salient feature of the report": "Mr Martinelli reports that he agrees with the police facts in relation to the offences currently before the Court. He stated that the illicit drugs were for both he and his partner's personal use and he would on occasions sell illicit drugs to close friends." 11 His Honour added in this regard: "This assertion is patent rubbish and I have no doubt that it was a deliberate lie." 12 In this regard it is relevant to refer back to his Honour's particular findings as to the nature of the business that the offender had conducted: receiving some 3000 relevant telephone calls intercepted on eight different telephone services which relate to his drug activities and other such findings that his Honour made and which I have set out earlier in this judgment. 13 His Honour also referred to the applicant's medical history and accepted that he had prostate cancer which was currently in remission. His Honour observed that it could adequately be managed in custody, and made a "small allowance" on the basis of the illness. 14 His Honour also observed: " … given the extent and sophistication of the enterprise being operated by the offender and others, the objective seriousness falls to be determined at or above the mid point for a case such as this." 15 His Honour also said: "If the offender's record is not sufficient to constitute an aggravating factor under the section, the two previous convictions for supply raise to prominence issues of specific deterrence and the protection of the community. Further, it seems to me that the degree of planning and organisation involved in the commission of this offence, over the extended period of time over which it was committed, was more extensive than that contemplated by the legislature. The offence was committed in company. This is relevant, not so much as an aggravating factor, in that the actions of the offender were emboldened by the presence of others, but is relevant, in my view, to the nature and extent of the operation. The offence involved a series of criminal acts. The offence was committed for financial gain. As to mitigating factors, the only real mitigating factor I can find is the offender's plea of guilty. This was entered at the first available opportunity and should attract the discount of 25 per cent. There is, in this case, absolutely no evidence of remorse. As to the standard non-parole period, this, of course, is not strictly applicable because of the offender's plea, but it is, nonetheless, a useful reference point. The Form 1 matters are serious in themselves but, in reality, they form part, in my view, of the extensive and sophisticated drug dealing operation which was being conducted by the offender. This is, as I said earlier, a very serious example of this type of offence. The operation was sophisticated, extensive and on-going. It was conducted for profit. It calls for, in my view, a very significant full time custodial sentence, notwithstanding the age of the offender and his ill health, neither of which seem to have had any effect upon his commission of these offences." 16 Certain aspects of the pre-sentence report are pertinent to issues raised on the appeal. 17 With respect to drug use the pre-sentence report said: "Mr Martinelli stated that his only period of illicit drug use was for a twelve month period in 2003. He stated that he would consume such orally once to twice a week. He cited ongoing emotional issues and accessibility via his then de-factor partner as compounding factors relating to his use of amphetamines. He stared that around the period of the loss of his parents he was formally diagnosed with cancer and this sent him into a period of emotional turmoil which he claims was a catalyst for his drug use. However the influence of his then partner who has been identified as having a long term dependence on illicit substances appears to have also been a factor. Further, the inmate has made disclosures to this Service in the past that he used amphetamines for approximately 3 years prior to the commission of the offence of 'Supply Prohibited Drug' in 2003. This raises the concern that the offenders most recent disclosures regarding his illicit drug use may not be indicative of his actual levels of use; nor the extent to which it has impacted on his lifestyle and consequently his offending behaviours." 18 With respect to gambling the pre-sentence report said: "Community inquiries and perusal of the offender's prior criminal history indicate that there may be some long term issues relating to the offenders gambling habits. It is of concern that should this be the case the consequent financial pressure that this would have created may have further compounded Mr Martinelli's offending behaviours. Further investigation in this area may be prudent." 19 The report also said, "the offender may have an unaddressed gambling and loss and grief issues which would further compound his offending behaviour". The report went on to make recommendations for strategies including "drug and alcohol assessment"; "monitor illicit drug use" and "assessment of gambling issues". 20 It is also pertinent to note the following statement in the agreed statement of facts: "Police enquiries at Western Suburbs Leagues Club indicate the offender was gambling significant amounts of money on the poker machines throughout the surveillance period." The Appeal 21 The applicant contends that His Honour fell into error in imposing the sentence that he did on the following grounds: 1) His Honour erred in failing to give due weight to evidence in relation to the applicant's gambling habit; 2) His Honour erred in failing to give due weight to evidence in relation to the applicant's prior and current drug use; 3) The sentence imposed by his Honour was manifestly excessive. Ground One 22 The applicant contends that his Honour failed to give due weight to what the ground refers to as "the applicant's gambling habit". The applicant relied upon the references in the agreed facts, the pre-sentence report and on his convictions in relation to gambling, as a foundation for an inference "that gambling has been a longstanding problem for the applicant". The applicant submits that his Honour failed to give due weight to the evidence before him in this regard. 23 None of the evidence which I have set out above reaches the level of addiction. Nor is there any suggestion in the evidence that the applicant was involved in the drug trade for purposes of funding his gambling. As the Crown submitted there is no persuasive evidence of a relationship between the offending and any gambling. In the absence of any evidence of any kind from the applicant in this regard, his Honour was not obliged to speculate about any such relationship. The evidence went no further than suggesting that the applicant chose to gamble money he had obtained as a lifestyle choice. 24 As his Honour said: "His criminal history bears out that he was a person who facilitated gambling by others and, whilst the police say that he gambled heavily at a club during the course of his criminal activity which gives rise to this offence, this does not necessarily mean that he had an addiction, simply that he had plenty of money with which to engage in an activity which he enjoyed." 25 His Honour was entitled to make that finding and there is no reason for this Court to review it. 26 There was no evidence with respect to gambling that could impinge upon his moral culpability or otherwise affect the assessment of the objective seriousness of the offence. There was no evidence of compulsion or obsession. 27 Mr A J Bellanto QC, who appeared for the applicant, submitted in oral submissions this morning that his Honour "was entitled" to take a further step and find that the applicant did have a gambling problem. To submit that his Honour "was entitled" to make a further finding is not a sufficient basis for this court to intervene. In my opinion, there was no evidence with respect to gambling that could impinge upon the applicant's moral culpability or otherwise affect the assessment of the objective seriousness of the offence. Specifically, there was no evidence of compulsion or of obsession. 28 In another case, the level of addiction may be found to be such that, on the basis of proper evidence of that addiction and of a direct link to the offending, this consideration will be relevant to the exercise of the sentencing discretion. (See eg R v Petrovic [1998] VSCA 95 and R v Cavallin (Victorian Court of Appeal, 24 July 1996, unreported) quoted in R v Molesworth [1999] NSWCCA 43 at [24]; R v Novak (1993) 69 A Crim R 145 at 148-149.) This is not such a case. 29 This ground should be rejected. Ground Two 30 The applicant contends that the pre-sentence report referred to prior use of drugs and that it contained a 'suggestion' that there had recently been use of drugs. His Honour rejected the suggestion. His Honour held and I repeat: "this assertion is patent rubbish and I have no doubt that it was a deliberate lie". 31 His Honour was entitled to reject the particular statement upon which counsel for the applicant relied before him. In any event, as quoted above the pre-sentence report had also said: "Mr Martinelli stated that his only period of illicit drug use was for a 12 month period in 2003." 32 Furthermore, the agreed statements of facts included the following express statement, attributed to the applicant at the time of his arrest: "The offender stated that he was not a user of the drug." This related to cocaine. 33 There was, in my opinion, no proper basis upon which his Honour could take into account evidence of drug use as affecting the objective seriousness of the offence with which the applicant was charged, or as affecting the moral culpability of his conduct in committing the offence. 34 This ground should be rejected. Ground Three 35 The sentence imposed was a significant sentence. However, it was a sentence imposed by the sentencing judge in the overall context of a pattern of offending and, particularly in the context of the retail drug supply business that had been conducted by the applicant, on his own admission, for a significant period of time and on a significant scale. 36 The offences to be taken into account on the Form 1 entitled his Honour to add a factor to the admitted offences. The overall criminal history of the applicant indicated that personal deterrence was a matter entitled to weight. 37 For the reasons as set out above, the reliance in this Court on the alleged gambling addiction and the alleged personal drug use were not matters entitled to weight of any significant degree in the sentencing exercise, if any. As his Honour said, the only matter of a mitigating character was the plea of guilty for its utilitarian value. 38 His Honour assessed the offending in this case as being in the mid range, or higher, of offending of this character. This discretionary judgment was open to his Honour and there is no reason for this Court to interfere with it. His Honour clearly set out the relevant facts and articulated the weight he attributed to the full range of relevant matters. 39 As the Crown submitted, the facts of this case are reasonably similar to the facts in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, where the Court re-sentenced the offender to a total term of nine years and four months with a non parole period of seven years. In that case as in this there was a plea of guilty. 40 Furthermore, the organised nature of the business within which the particular act of supply occurred was similar. 41 None of the other cases referred to suggest that the sentence imposed was outside the range of the exercise of the sentencing discretion. 42 In my opinion, ground 3 should also be rejected. 43 Leave to appeal should be granted and the appeal dismissed. 44 McCLELLAN CJ at CL: I agree with the Chief Justice. 45 JOHNSON J: I also agree. 46 SPIGELMAN CJ: The order of the Court is as I have indicated. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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