Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Mammone v R [2013] NSWCCA 95
• Hearing dates: 8 February 2013
• Decision date: 02 May 2013
• Before: Latham J at 1; Button J at 65; Grove AJ at 66

Decision

Leave to appeal sentence granted

Appeal dismissed

• Catchwords: CRIMINAL LAW - appeal - sentence only - issues of parity - assessment of objective gravity of offence - s 6(3), Criminal Appeal Act 1912 - no distinction between tests of "too severe" and "manifestly excessive" - disparity may be justified by age, background, criminal history and role in the offence of various offenders
• Legislation Cited: Criminal Appeal Act 1912; Crimes (Sentencing Procedure) Act 1999
• Cases Cited: Collier v R [2012] NSWCCA 213; Green v The Queen ; Quinn v The Queen [2011] HCA 49; Hili v The Queen ; Jones v The Queen [2010] HCA 45; House v The King [1936] HCA 40; Hristovski v R [2010] NSWCCA 129; Lipchin v R [2013] NSWCCA 77; Markarian v R [2005] HCA 25; SGJ v R; KU v R [2008] NSWCCA 258
• Category: Principal judgment
• Parties: Franco Mammone - Appellant; Regina - Crown Respondent
• Representation: Counsel; D Dalton SC - Appellant; T Smith - Crown Respondent; Solicitors; Smythe Wozniak Legal - (Appellant); S Kavanagh - Solicitor for Public Prosecutions - (Crown Respondent)
• File Number(s): 2010/61895

Decision under appeal

• Date of Decision: 2012-03-16 00:00:00
• Before: Knox DCJ
• File Number(s): 2010/61895

Judgment

1 LATHAM J : The applicant seeks leave to appeal against an aggregate sentence of 10 years, with an aggregate non-parole period of 6 years and 8 months, imposed upon him following pleas of guilty to manufacture a commercial quantity of a prohibited drug (methylamphetamine) and knowingly take part in the supply of not less than a commercial quantity of methylamphetamine.

2 Eight offences, including possess a loaded firearm in a public place, two counts of supply cocaine, three counts of possessing a false instrument and one count of dealing with proceeds of crime, were taken into account for the purposes of sentencing on the manufacture charge.

3 Each offence carries a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years. The applicant received a sentence of 10 years, including a non-parole period of 6 years and 2 months for the manufacture offence. A fixed term of 4 years and 6 months was imposed for the supply offence, and was partially accumulated on the previous sentence in order to extend the non-parole period by 6 months. This latter sentence was not open to his Honour, but the applicant makes no complaint about that.

4 The grounds of the appeal raise parity issues, questions relating to the assessment of the objective gravity of the offences and complain that the sentence is "too severe".

The Offences

Manufacture Commercial Quantity of Methylamphetamine

5 The applicant's arrest followed a police investigation into the suspected manufacturer of prohibited drugs at a rural property near the township of Marulan, north of Goulburn.

6 The electricity supply to the property was in the applicant's name. Surveillance by police and lawfully intercepted telephone calls demonstrated that the applicant attended the property on 29 October 2009 and thereafter on a number of occasions. The property was also visited on numerous occasions by associates and relatives of the applicant.

7 Police executed a search warrant on 30 November 2009 and noted the presence of a quantity of equipment consistent with a clandestine laboratory for the manufacture of methylamphetamine in a shed on the property. A covert audiovisual recording device was installed in the shed on 11 December 2009.

8 As a result of that device, a number of members of the extended Mammone family were recorded in connection with the manufacture of methylamphetamine. They included the applicant's father, the applicant's cousin, the applicant's brother-in-law, one Bruno Romeo, Marcio Francisco and Kurt Minard.

9 The applicant and Romeo were arrested in Kings Cross on 19 December 2009 after police had observed the applicant supplying a quantity of cocaine to Romeo. A search of the applicant's vehicle revealed a loaded .22 handgun which was in a bag under the passenger seat. The applicant admitted supplying Romeo with cocaine and he admitted that another bag of cocaine was intended for himself and his girlfriend. Cash in the sum of $480 was found in the applicant's pocket. These offences appear on the Form 1. Following his arrest on these offences, the applicant was released to bail on 4 February 2010.

10 Whilst the applicant was still in custody, the applicant's father and brother-in-law were recorded on the surveillance devices entering the shed at the property, and removing glassware and other materials from the clandestine laboratory.

11 On 20 February 2010, the applicant returned to the rural property in company with his brother-in-law. The surveillance equipment recorded both men entering the shed. The applicant was observed checking the doors and windows and looking in drawers.

12 On 26 February 2010 the applicant's cousin and Kurt Minard entered the shed at the property and carried in a number of boxes. They unpacked boxes which contained glassware and chemicals capable of being used in the manufacture of methylamphetamine. They inspected the glassware, repacked the equipment into boxes and moved some items to an adjoining room before leaving.

13 On 28 February 2010 a number of telephone intercepts recorded conversations between the applicant, his cousin and another person about transporting someone referred to as the "labour" to the shed. The reference to the labour was a reference to Kurt Minard. Minard assisted the applicant's cousin in the manufacturing process on three occasions in March 2010.

14 On 3 March 2010 the police again entered the property and retrieved the audiovisual recordings up to that time. Forensic samples of precursors to the manufacture of methylamphetamine were obtained. Police observed evidence of the recent manufacture of methylamphetamine.

15 The next day, the applicant, his cousin and Romeo travelled to the property in order to commence the manufacture of methylamphetamine that afternoon. On 5 March 2010, Kurt Minard arrived at the property. All four men were recorded inside the shed whilst methylamphetamine was being manufactured. The applicant and Romeo left the property some hours before the process was completed.

16 On 8 March 2010, the applicant's cousin and Kurt Minard returned to the property and entered the shed. They set up manufacturing equipment and carried out the manufacture of a quantity of methylamphetamine.

17 On 9 March 2010, the applicant and another man arrived at the property and entered the shed. They were recorded wearing gloves at a table in the corner of the shed. The other man left the shed with a transparent container of liquid.

18 On 10 March 2010 the police again entered the shed. Methylamphetamine and pseudoephedrine were detected in various containers. A quantity of equipment and a quantity of precursor chemicals were also found in the shed. A shipping container on the property contained sieves and vessels that appeared to have been used in the manufacture of methylamphetamine.

19 At no time did police seize the product of the manufacturing process. The applicant's plea was entered on the basis that the quantity of methylamphetamine manufactured in the shed was not less than the commercial quantity, when account was taken of the three identified occasions when the manufacturing process was recorded. A quantity of 995 g was particularised in the indictment, being an estimate of the total amount of the drug manufactured over the relevant period.

Supply Commercial Quantity of Methylamphetamine

20 In late January 2010 a series of intercepted telephone calls between the applicant, his cousin and Vince Monteleone recorded a discussion about the potential supply of a quantity of methylamphetamine to Monteleone whose intention was to on-sell the drug to a third party at a profit.

21 On 9 February 2010, the applicant's cousin further discussed the price and the timing of the supply. Other discussions were recorded on 15 and 22 February 2010, the latter between the applicant and Monteleone. The applicant indicated that the material could be supplied but Monteleone required further time to arrange the on-supply.

22 During these calls, there was a reference to "260" which was taken as a reference to price. This figure forms the basis of the particular as to the quantity of the drug that was offered for supply.

23 On 24 February 2010 Monteleone phoned the applicant and told him that the third party was not able to proceed at that time.

Grounds 1, 2 and 3 : the Severity of the Sentence

24 Ground 1 is framed in the following terms : "The sentence imposed was in the circumstances too severe." This ground does not discriminate between the individual sentences imposed for two discrete offences and, in the light of grounds 2 and 3, can only be taken to refer to the aggregate sentence.

25 Ground 2 alleges error in the finding that the offences fell into the mid range of objective gravity.

26 Ground 3 asserts that the sentencing judge erred "in finding the manufacture count was aggravated by the precipitating arrangements for the supply" offence.

27 On the hearing of the appeal, senior counsel for the applicant contended that the relevant test for the purposes of establishing error under ground 1 was that the sentence was "too severe", not that it was manifestly excessive. Counsel maintained that the language of s 6(3) of the Criminal Appeal Act 1912 dictated that result and that there was a distinction, albeit a fine one, between "too severe" and "manifestly excessive".

28 This submission must be rejected. Any inquiry on an appeal against sentence begins with the identification of error, either patent or latent. Where a specific error has not been demonstrated, the court may nonetheless conclude that the sentence is unreasonable or plainly unjust. In the latter circumstance, the sentence is described as manifestly excessive : Markarian v R [2005] HCA 25 at [25] ; Hili v The Queen ; Jones v The Queen [2010] HCA 45, at [59].

29 Manifest excess and "too severe in all the circumstances" are on occasions used interchangeably in grounds of appeal before this Court. On every occasion when such a ground has been entertained, the Court has made it abundantly clear that there is no principled difference between those respective expressions. The applicant's counsel provided no authority to the contrary.

30 Grounds 2 and 3 assert patent error. I will deal with these grounds before returning to ground 1.

The Objective Gravity of the Offences

31 The sentencing judge found that this applicant and Pino Mammone (the applicant's cousin, who was sentenced jointly with him) were involved in a large and sophisticated clandestine laboratory in an isolated area. His Honour went on to find that :-

there was considerable and careful planning, premeditation as well as concealment in the operation and use of the premises. A significant quantity of precursor chemicals were found, as well as a large volume of a variety of prohibited substances. Their discussions indicated an involvement in most, if not all the operations.

There was a relatively large workforce involved in the total operation, which appears to have been organised, and at the relevant time organised by them from within people known to them, either the extended family, friends or community.

32 On this basis, the judge found that the objective criminality of the manufacturing offence was serious and at least in the mid range. His Honour acknowledged that the Crown had submitted that the objective gravity was not very far below mid range. The applicant's senior counsel acknowledged that his Honour was not bound by the Crown's assessment.

33 With respect to the supply offence, his Honour had regard to the terms of the offer to supply, including the quantity of the drug, its price, that it was motivated by reasons of commercial gain, that the applicant at all material times appeared to have the intention to fulfil the offer as well as the capacity to fulfil the offer. His Honour also had regard to the fact that there was no actual supply, but ultimately found that the objective criminality was "of the order of mid range".

34 The applicant contends that the assessment with respect to the manufacturing offence was not warranted in the light of the fact that there was no evidence of a "long term highly organised structure" and no evidence of a security system involving armed guards, electronic surveillance "or other indicia of an established and highly sophisticated organisation". In the same vein, the applicant contends that there was no evidence of "an established distribution process for an ongoing manufacturing organisation". In support of that contention, the applicant submits that the supply offence suggested an ad hoc event.

35 The objective gravity of an offence is not determined by the absence of features that would elevate it into a different category of objective seriousness. Positing hypothetical offences of greater objective gravity does not assist in determining where the particular offence lies on the scale of objective gravity. The assessment must be carried out on the basis of what is known, rather than by conjecturing what factors may have made it more objectively serious. The reference to armed guards and electronic surveillance is curious, given that these are rarely indicia of clandestine laboratories. The capacity to manufacture large quantities of illicit drugs depends upon the maintenance of the appearance of normality in a low-key setting.

36 With respect to the supply offence, the applicant submits that it was Monteleone who initiated the offence and that there was no evidence that the applicant was to receive any greater remuneration than Monteleone. These factors are said to support the finding by the judge sentencing Monteleone (Murrell SC DCJ) that the supply offence should be placed at the low end of the range. His Honour adverted to that assessment and disagreed with it. In any event, whether or not it is accurate to describe Monteleone as the initiator, the fact remains that the applicant was the source of the drug to be supplied. It may be legitimately inferred that the manufacturer of the drug would reap a profit in excess of the difference between the "wholesale" and the "retail" price of the drug.

37 An assessment as to the objective gravity of any offence is a discretionary judgment. This Court should be slow to interfere with such an assessment by a sentencing judge, unless the discretion has miscarried for the reasons explained in House v The King [1936] HCA 40; (1936) 55 CLR 499. The applicant has not demonstrated that his Honour mistook the facts, failed to take into account a relevant consideration, took into account an irrelevant consideration or acted on a wrong principle. His Honour's assessment is not unreasonable or plainly unjust.

38 There is no substance to ground 2.

The Relationship Between the Manufacture and the Supply Offences

39 The applicant contends that his Honour in effect aggravated the sentence on the manufacturing offence by taking into account the supply offence when determining sentence on the former.

40 The applicant relies upon the following passage in the remarks on sentence :-

I need to make the specific finding on the questions of relativity and parity. Pino and Franco Mammone were essentially the principles of the manufacturing operation, particularly in their organisational roles, recruiting others, being actually involved in the manufacture, as well as in the marketing and sales end of the overall operation. They were also clearly involved in the commercial profit discussions with Mr Monteleone and indirectly with third parties.

41 This passage appears under the heading "Comparative Role of Offenders". It is obviously directed at parity considerations. There is no substance to ground 3.

42 Returning to ground 1, I am not persuaded that the sentence, either in respect of each offence or in the aggregate, is outside the range of a legitimate sentencing discretion. Given that each offence carries a standard non-parole period of 10 years' imprisonment, and that the judge found (appropriately) that the objective gravity of each offence was in the mid range, the aggregate head sentence of 10 years demonstrates a somewhat generous approach towards the applicant.

Grounds 4 - 7 : Parity with Monteleone, Romeo and Minard

43 The applicant claims that his Honour dismissed the significance of the sentence imposed on Monteleone and/or that he has a justifiable sense of grievance with respect to the sentence imposed upon Monteleone. Monteleone only stood for sentence on the isolated count of supply. He received a non-parole period of 11 months with a balance of term of 20 months.

44 The applicant also claims a justifiable sense of grievance with respect to the sentences imposed upon Romeo and Minard respectively. They each stood for sentence only on the manufacture count. Romeo received a non-parole period of 12 months, with a balance of term of one year and three months. Minard received a non-parole period of two years and three months with a balance of term of two years and three months.

45 Disparity giving rise to appellate intervention must be "marked". The imposition of different sentences does not, without more, raise "equal justice" considerations. Moreover, a sense of grievance is only "justifiable" or legitimate if the application of objective criteria compels the court to that conclusion. The age, background, criminal history and role in the offence of various offenders may justify some disparity : Green v The Queen ; Quinn v The Queen [2011] HCA 49 at [31].

46 In particular, as the majority in Green & Quinn make clear,

A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders.

47 On the supply offence, his Honour unfortunately imposed a fixed term of imprisonment of four and a half years, contrary to law. Section 45(1) of the Crimes (Sentencing Procedure) Act 1999, which permits a court to decline to set a non-parole period does not apply to a standard non-parole period offence: SGJ v R; KU v R [2008] NSWCCA 258 at [76] - [78]. Six months of that sentence was accumulated on the non-parole period imposed for the manufacture offence. The applicant does not complain that that modest degree of accumulation was not warranted in the circumstances of the case.

48 Having regard to the debate on the question of whether a fixed term otherwise represents the non-parole period or the length of the head sentence (see Collier v R [2012] NSWCCA 213 per Hulme J), there is nothing in the remarks on sentence that explicitly indicates what the judge intended in that regard. Given that the supply offence carries a standard non-parole period of 10 years and that his Honour assessed the objective gravity of the supply offence in the mid range, it is reasonable to conclude that the fixed term represented the non-parole period. Both the Crown and the applicant approached the matter on that basis on the hearing of the appeal. In the result, a re-sentencing on this basis ought make no difference to the aggregate non-parole period or aggregate sentence, assuming no other basis for intervention : Hristovski v R [2010] NSWCCA 129 ; Lipchin v R [2013] NSWCCA 77.

49 Returning to the complaint concerning the sentence imposed on Monteleone for the supply offence by Murrell SC DCJ, it is not correct to assert that his Honour "dismissed the significance of the sentence" or disregarded it in any material respect. The remarks on sentence for Monteleone was an exhibit in the sentencing proceedings. His Honour referred to those remarks on a number of occasions in the course of his remarks on sentence.

50 There were a number of significant differences between the applicant and Monteleone, namely the latter had no prior criminal history, there was nothing to indicate that he had ever been involved in the distribution of drugs prior to the instant offence, and there was a justifiable finding that there was no prospect of re-offending, thereby reducing the importance of personal deterrence in the sentencing exercise.

51 By way of contrast, the applicant had a prior criminal history, including convictions for possess prohibited drug in 1999 and 2001, and convictions for possessing an unauthorised firearm in 2001 and 2005. The applicant was on bail for firearm and drug offences when the discussions with Monteleone took place. His Honour was not convinced of the applicant's prospects of rehabilitation.

52 In short, these were qualitative and discretionary judgments made by his Honour with respect to the applicant that were entirely justified in the circumstances of this case. It was open to his Honour to depart from Murrell SC DCJ's assessment of the offence. In my view, her Honour's assessment was unduly generous towards Monteleone.

53 It may be accepted that the disparity is "marked" if one accepts that the fixed term represents the non-parole period. However, as I have already noted, the sentence for the supply offence is all but totally subsumed by the sentence for the manufacture offence, so that, even if intervention were warranted in order to reduce the extent of the disparity, it would make no practical difference to the outcome, assuming no basis for intervention on the manufacture charge.

54 Turning to the manufacture offence, the judge made several findings with respect to the roles of the applicant and Pino Mammone. No issue is taken by the applicant with those findings. As noted at [40], his Honour found that the applicant was essentially a principal in the manufacturing operation, who played an organisational role which included recruiting others, and oversighting the manufacture with a view to selling the end product. A notional head sentence in the order of twelve and a half years for the manufacture offence, taking into account the offences on the Form 1, resulted in a head sentence of 10 years after the application of a 20% discount for the plea of guilty.

55 Romeo's sentence was the result of the application of a combined discount of 45%, comprising a 20% discount for the plea of guilty and an additional component for assistance provided by Romeo to the authorities. The applicant maintains that Charteris SC DCJ adopted a starting point of 5 years. Leaving to one side the discount applied for the offender's assistance, the applicant submits that an appropriate comparative notional head sentence for Romeo was one of four years, that is, less than half of the notional head sentence for the applicant.

56 The applicant acknowledges that there were significant differences between the applicant's role and that of Romeo, but submits that these differences do not justify the disparity between the respective sentences.

57 Charteris SC DCJ sentenced Romeo on the basis that his role was limited. The applicant and his cousin were described appropriately as the organisers of the enterprise. The Crown described Romeo as a "rouseabout", in that he played a role inferior to that of the "cook". Romeo's counsel and the Crown agreed that the offender's criminality fell below that of Minard. It was accepted that Romeo was using cocaine in the time leading up to his arrest and that he was expecting to receive some financial gain for his contribution. The judge accepted Romeo's assistance was "very significant". His prospects of rehabilitation were considered promising.

58 In addition to those differences, Romeo had one prior offence of custody of a knife and one for possession of cocaine. His remorse was assessed as genuine. Significantly, there were no offences on a Form 1 to be taken into account when imposing the sentence on the manufacture offence.

59 Having regard to these matters, the respective roles played by the applicant and Romeo and the corresponding differences in their culpability, I am not persuaded that the disparity gives rise to a justifiable sense of grievance.

60 Minard was sentenced by Norrish QC DCJ on the basis that he played a relatively limited role compared to that of the applicant. Minard was recruited to work for a wage by the principals of the organisation, which included the applicant. He was described as a cook who performed functions at the direction of others. He was paid on a per diem basis and was therefore not going to receive any share in the profits on the sale of the drug. Minard's entry into the enterprise was relatively late and he had no prior association with the applicant or the other principals.

61 Minard was said to be truly contrite with good prospects of rehabilitation. He was not on conditional liberty at the time of the commission of the offence. Personal deterrence was not significant in the sentencing exercise and his circumstances in custody were said to be harsher than those experienced by the general prison population.

62 A notional starting point of 6 years before the application of a 25% discount for the plea of guilty appropriately, in my view, reflects Minard's culpability relative to that of the applicant. The applicant has not established any basis for intervention on this ground.

63 There is no merit in grounds 4, 5, 6 and 7.

64 I would grant leave to appeal on sentence, but dismiss the appeal.

65 BUTTON J : I agree with Latham J.

66 GROVE AJ : I agree with Latham J. I wish expressly to associate myself with her Honour's remarks concerning the asserted distinction between the phrases "too severe" and "manifestly excessive".

Decision last updated: 06 May 2013