R v Russo [2013] NSWDC 47

District Court New South Wales

Medium Neutral Citation: R v Russo [2013] NSWDC 47 Hearing dates: 1st March 2013 Decision date: 01 March 2013 Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of an overall non-parole period of 15 months and an overall head sentence of 30 months. The offender is to be released at the end of the non-parole period Catchwords: CRIMINAL LAW - Sentence - Form 1 - Corruptly giving a benefit to an agent - Performance enchancing substanes - Trotting industry Cases Cited: Regina v Potter [2005] NSWCCA 26 Category: Sentence Parties: The Crown Michael Andrew Russo Representation: Director of Public Prosecutions Bunton Law - Offender File Number(s): 2011/381756

SENTENCE 1HIS HONOUR: Many people enjoy betting. Many people enjoy betting on horse races. A lot of people do not, but those that do are entitled to have things as fair as possible. They are entitled to have horses run on their merits and they are entitled to have the authorities act properly in ensuring that that is the case. What the offender, Michael Russo, did was, on eleven occasions, act corruptly by giving or offering a benefit to a steward in the harness racing authority, so that horses with which he, Mr Russo, was involved with would not be tested by the stewards. He did this because he knew that if such testing was undertaken it would reveal matters of concern, usually that the horses had been given something to enhance their performance. This is corruption in a pastime which is important to many people. It is corruption which must be dealt with severely when it is detected. The Court of Criminal Appeal in a decision called Regina v Potter [2005] NSWCCA 26 demonstrated just how serious corruption, including of stewards, in the racing industry is. 2The offender has pleaded guilty to nine counts of corruptly giving a benefit to an agent and asks that when I sentence him for the first of those matters, I take into account two other counts of corruptly offering to give a benefit to an agent on a Form 1. He pleaded guilty to those matters at the first opportunity and so the sentences I will impose upon him are twenty-five per cent less than they would otherwise have been. 3The corrupt activity extended over a significant period. It began sometime in early 2010. Quite who approached whom I am unable to determine, but in February 2010 the first of a series of transactions took place. Mr Russo contacted a steward by the name of Matthew Bentley, a corrupt steward who, somewhat amazingly, has been granted an immunity from prosecution so he may never face punishment for his involvement in what I am about to describe. 4The purpose of Mr Russo contacting Mr Bentley was to confirm that Mr Bentley would be the steward working at a particular harness racing meet on 22 February 2010. The two men worked out that Mr Bentley would be there that day and Mr Russo nominated a particular horse of his and asked that that horse not be pre-race drug-tested. An agreement was reached that if that horse won the race, the steward would be paid by Mr Russo. The horse did win. The connections of the horse received $1,400 in prize money and in the following days Mr Bentley received $500 cash from Mr Russo. 5The whole purpose of this meeting was so that the horse could run after receiving what is described as a "milkshake" or some other similar performance enhancing substance. A milkshake involves the administering of bicarbonate of soda to the horse by way of drenching. Drenching is the administration of the substance in a tube fed through the nose of the horse going directly into the horse's stomach. The reason this is done is to elevate the total carbon dioxide level of the horse which counters the naturally occurring build-up of lactic acid that takes place during vigorous exercise. Fatigue is limited and endurance is increased. The harness racing authorities of course know all about the effects of bicarbonate of soda on a horse, and so one of the testing procedures they undertake is designed to detect elevated levels of total carbon dioxide in horses. 6So on 22 February 2010 a doped horse was run. It won and through the corrupt arrangements made between Mr Russo and Mr Bentley the fact that the horse had been doped was hidden. On eight other occasions similar things occurred. It is not necessary to go through the facts of each individual offence. What happened was broadly similar to what I have just described, although in some cases the purpose of ensuring that the horse was not tested was not because the horse had been doped with something like a milkshake, it was to ensure that other substances which had been administered to the horse, such as painkilling medication would not be detected. 7The offences were committed by the offender on 8 March 2010, 24 May 2010, 11 October 2010, 27 December 2010, 10 March 2011, 1 July 2011, 4 August 2011, 20 July 2011 and 27 July 2011. 8It was not always Mr Bentley who was the corrupt steward either. Another corrupt steward, Paul O'Toole, was the recipient of money from the offender on some occasions for doing what I have earlier described, namely ensuring that particular horses were not tested. 9The offender was arrested on Thursday 24 November 2011. He was interviewed and I gather it is accepted now that he did not tell the truth to the police. He said, for example, that he did not administer bicarbonate of soda to his horses but put it in their feed only to encourage them to drink. He claimed that he did not know that the substance could have any other more positive effect on a horse's performance while running. 10The offender comes before me as a man of otherwise good character with one qualification. On 24 September 2009 he had been put on a s 10 bond for twelve months for a special range PCA matter. Although it is a matter of aggravation that he was on a bond at the time, because of the period of time which had elapsed before the offender committed the first of these offences and because the bond was for an offence quite different in criminality from those I have just described, the fact that he was on a bond will make no difference to the sentence that I am ultimately going to impose. 11The offender has a close relationship with his family. He had a stable upbringing. He continues to live with his parents. He has a partner who he plans to marry in the future. As well as training horses, which got him involved in these offences, he works in the family fruit and vegetable business. He continues to do that to this day. He does not have any history of alcohol abuse or abuse of illegal drugs and so what led to him committing these offences cannot be explained by any deficiency in the way he was brought up. He only has himself to blame for the predicament in which he now finds himself. 12The offender told Probation and Parole that the offences were not for financial gain although, clearly, as Mr Bunton who appears for the offender now accepts, they were. The offender also told Probation and Parole that his prime motivation for committing these offences was to enhance his reputation as a trainer. If horses that he was training were winning regularly then of course his reputation as a trainer would be increased. It really matters not whether Mr Russo's motivation was direct rewards through prize money paid when his horses won, or indirectly because he wanted to be known as a top class trainer - the point was that Mr Russo was prepared to gain those advantages through improper means and to cover them up through seriously criminal corrupt behaviour. 13The offender says that he is remorseful in a letter tendered today to me, to which the Crown did not object. He says that he has only recently learned how the trotting industry has been greatly harmed by his behaviour. He understands that he will not be involved in the trotting industry for some time, if ever again. This is a matter that he feels deeply because he has had a passion for the sport, he says, for as long as he can remember with both his father and uncle being involved in the trotting industry. 14The one matter of some significance that Mr Bunton is able to call in aid in the offender's favour, concerns what has happened to the offender's co-offenders. As I mentioned, one of them got an immunity from prosecution, but that is not a matter that should affect the sentence that I impose upon the offender. The principles of parity do not extend to a consideration of Prosecution decisions as to who will be granted an immunity and who will not. I should also say that although I described the decision not to prosecute Mr Bentley as amazing earlier in these remarks on sentence, I do acknowledge that I do not know everything behind this case and I actually mean no criticism of the prosecuting authorities in what I have said. 15Others have been dealt with in the Local Court, but unfortunately for the offender, in terms of parity, there are significant differences between them and him. In particular, fewer offences were committed and over a much shorter period of time. On top of that, one of them, Dean Atkinson, assisted the harness racing authorities, by confessing his involvement and providing information to them, which was a matter that, of course, was significantly taken into account in his favour. Information about the other co-offender who has been sentenced in the Local Court, Jay Fitzpatrick, is limited indeed. 16There are significant impediments to understanding why it is that each received community service, and thus there are significant impediments to the offender in attempting to demonstrate that he would have a justifiable sense of grievance when he compares the sentence that he will receive from me with the sentence that was imposed upon them in the Local Court. 17Mr Bunton correctly concedes that imprisonment is required, but seeks to persuade me that a sentence not involving fulltime custody is appropriate. The Crown seeks a sentence of fulltime custody. Once the decision is made that imprisonment is required, fully accepting a sentence of imprisonment is a sentence of last resort, the question becomes how long should that sentence be and if there are no alternatives to fulltime custody because of the length of the sentence chosen, then that is the inevitable outcome. 18It is clear general deterrence must play a major role in the sentence I am about to announce. Often sentences are imposed upon a person when the only people in court are the offender, court staff and two lawyers. General deterrence still has a role to play in that case but it will have some significant effect I trust in the present case. I have no doubt some publicity will be given within the harness racing industry to the sentence I am about to impose upon Mr Russo. I emphasise immediately that does not mean he will get a harsher sentence. No one should get a more severe sentence simply because there will be publicity given to it. All I am trying to say is that because of the narrow field in which these offences were committed, the sentence I have chosen to impose upon the offender will have the effect, I trust, of causing others who might be tempted to act in the way Mr Russo did, to wonder what will happen to them if they too are detected as being involved in corruption of this kind. 19There is a tendency to underestimate the criminality of corruption of this nature. There is no identifiable victim, there is no victim impact statement read by a victim in tears and there is no particular person one can look at in a statement of facts and consider how awful the effects of a crime upon that person have been. So the lack of personal consequences of that kind can sometimes lead to the criminality of conduct like this being underestimated. But in truth, it is significantly criminal behaviour to do what the offender did. He has been involved in corruption with someone who was given a high level of trust. It was Mr Bentley's and Mr O'Toole's job to prevent precisely what Mr Russo was doing. To be involved with people of that kind affects the harness racing industry at a very basic level. The harm is diverse; many people suffer rather than just one identifiable victim. I mentioned before the Court of Criminal Appeal decision in Potter. That decision has demonstrated how serious corruption involving stewards in the racing industry is. 20The question of concurrency and accumulation arises. Correctly, Mr Bunton realises I should not impose wholly concurrent sentences, but nor should I impose nine individual sentences which have the effect of imposing a longer sentence on the offender than the principle of totality requires. There is a somewhat arbitrary approach required. I will impose a longer sentence on count 1 because of the presence of the two Form 1 matters. There will be partial accumulation of other sentences upon those but I will group those other sentences into two groups. I will make a finding of special circumstances in the offender's favour, not because I think he is likely to do this in the future but because this is his first time in custody. He will be assisted by the provision of supervision by the Probation and Parole Service as he returns to freedom at the end of the effective non-parole period I am about to announce. 21 For charges 2 to 5, the offender is sentenced to imprisonment. I set a non-parole period of nine months and a head sentence of one year to commence 1 March 2013. 22For charges 6 to 9, the offender is sentenced to imprisonment. I set a non-parole period of six months and a head sentence of one year to commence on 1 September 2013. 23For charge 1, the offender is sentenced to imprisonment. I set a non-parole period of three months to commence on 1 March 2014 and a head sentence of eighteen months. 24The overall sentence consists of a non-parole period of fifteen months with a head sentence of thirty months. I direct the offender is to be released to parole on 31 May 2014.