R v Gaetano VITALE; R v Mark SCALIA [2016] NSWDC 223

District Court New South Wales

Medium Neutral Citation: R v Gaetano VITALE; R v Mark SCALIA [2016] NSWDC 223 Hearing dates: 5 February, 14 April 2016 Decision date: 06 May 2016 Jurisdiction: Criminal Before: Yehia SC DCJ Decision: 6 May 2016 Catchwords: Manufacture not less than a commercial quantity of methylamphetamine - knowingly taking part in the manufacture of not less than a commercial quantity of methylamphetamine - admixture rule - participating in a criminal group Legislation Cited: Crimes Act 1900 (NSW), s 93S, ss 93T, 192E(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(o) Drug Misuse and Trafficking Act 1985 (NSW), ss 4, 24(2) Evidence Act 1995 (NSW), s 184 Cases Cited: Dang v R [2013] NSWCCA 246 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 Hili v The Queen (2010) 242 CLR 520 Muldrock v The Queen (2011) 244 CLR 120 R v Todd (1982) 2 NSWLR 517 R v Bolder; R v Zaphir [2008] NSWCCA 222 Tsai Yu v R [2016] NSWCCA 73 Category: Sentence Parties: Regina (Crown) Gaetano Vitale (Offender) Mark Scalia (Offender) Representation: Mr D Patch (Crown) Ms C Younes (G Vitale) Mr P Kintominas (M Scalia) File Number(s): 2013/193921, 2013/273903 Publication restriction: Nil

Judgment 1. After presiding over a judge-alone trial, on 16 October 2015 I found the offender Gaetano Vitale guilty of manufacturing not less than a commercial quantity of methylamphetamine between 14 June and 26 June 2013 at Bringelly and other places in the State of New South Wales. I was not satisfied beyond reasonable doubt that he was guilty of manufacturing a large commercial quantity of that substance. The offence of which I found him guilty is contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). 2. On that date I also found Angelo Vitale and Mark Scalia guilty of knowingly taking part in the manufacture of not less than a commercial quantity of methylamphetamine between 14 June and 26 June 2013 at Bringelly contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Similarly, I was not satisfied beyond reasonable doubt that they knowingly took part in the manufacture of a large commercial quantity. 3. Accordingly, all three offenders are to be sentenced with respect to those offences. Section 24(2) carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years imprisonment. 4. I will proceed to sentence Gaetano Vitale and Mark Scalia today. Angelo Vitale's sentence proceedings have been adjourned to 2 September 2016, in view of the medical evidence tendered on his behalf and the fact that it has become necessary for him to engage in radiotherapy treatment for his cancer. 5. Each offender has also pleaded not guilty to a related offence contrary to s 93T of the Crimes Act 1900 (NSW) contained on a s 166 certificate. I will return to the resolution of those offences in due course. 6. Gaetano Vitale is also to be sentenced for an unrelated offence of dishonestly obtain benefit by deception contrary to s 192E(1)(b). That offence carries a maximum sentence of 10 years imprisonment. The offender pleaded guilty to that offence in the Local Court and the matter was committed for sentence on 21 January 2016. When sentencing him for that offence, I take into account an offence of participating in criminal activity which is set out on the Form One document.