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Court of Criminal Appeal 23 June 2009

Martinelli v Regina

[2009] NSWCCA 175

Drugs
CRIMINAL LAW SENTENCE RELEVANT FACTORS NATURE AND CIRCUMSTANCES OF OFFENDER GAMBLING ADDICTION OBJECTIVE SERIOUSNESS OF OFFENCE

Citation: Martinelli v Regina [2009] NSWCCA 175
Court: New South Wales Court of Criminal Appeal
Date: 23 June 2009
Judge(s): Spigelman CJ, McClellan CJ at CL, Johnson J

Background

The applicant pleaded guilty to supplying a commercial quantity of amphetamine under the Drug Misuse and Trafficking Act 1985, with two further offences (supply and possession of cocaine) taken into account on a Form 1. The offence involved a sophisticated, daily retail drug supply operation run jointly with his brother between October 2006 and September 2007, incorporating encrypted communications, counter-surveillance measures, and supply to both street users and other dealers.

In the District Court, Judge Coolahan sentenced the applicant to a non-parole period of seven years, with a balance of term of three and a half years. His Honour found the offending fell at or above the midpoint for seriousness, gave a 25% discount for the early guilty plea, and made a small allowance for the applicant's prostate cancer (then in remission). The only mitigating factor identified was the guilty plea.

The applicant sought leave to appeal, arguing that the sentencing judge had failed to give adequate weight to an alleged gambling addiction and personal drug use, had incorrectly assessed objective seriousness, and had imposed a sentence that was manifestly excessive overall.

  • Whether an alleged gambling addiction should have been treated as a mitigating factor affecting the objective seriousness or moral culpability of the offending
  • Whether evidence of personal drug use by the applicant (or his partner) should have reduced his moral culpability for the supply offence
  • Whether the sentence of seven years non-parole was manifestly excessive in all the circumstances

Decision

On the gambling addiction ground, the Court found there was no evidence of compulsion, obsession, or any direct causal link between a gambling problem and the drug supply operation. The sentencing judge had himself noted that the supply was for profit, but declined to find a gambling motivation in the absence of specific supporting evidence. The Court of Criminal Appeal held that, without evidence connecting an addiction to the offending, it could not operate as a meaningful mitigating factor going to either objective seriousness or moral culpability.

On the drug use ground, the Court found the claim was inconsistent with the agreed facts. The applicant had not given evidence at sentence, and the pre-sentence report contained an assertion that drugs were for personal use that the sentencing judge characterised as a deliberate lie, given that the operation involved over 3,000 intercepted calls across eight phone services, dozens of clients, and supply to other dealers. The Court confirmed the sentencing judge was entitled to doubt and reject material in a pre-sentence report where it was contradicted by the agreed facts.

On manifest excess, the Court found the sentencing discretion was properly exercised. The applicant's criminal history, which included two prior convictions for drug supply, elevated the significance of personal deterrence. The organised nature and scale of the enterprise supported a mid-to-high assessment of objective seriousness. The Court noted the sentence was broadly comparable to that imposed in R v Way, where similar facts attracted a seven-year non-parole period. No basis for appellate intervention was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A claimed gambling addiction will not, without more, mitigate a sentence for commercial drug supply. The Court confirmed that an addiction must be supported by evidence of compulsion, obsession, or a direct link to the offending before it can carry significant mitigating weight.
  • Sentencing courts are entitled to reject assertions in pre-sentence reports where those assertions are contradicted by agreed facts. The Court of Criminal Appeal affirmed that a trial judge may characterise such statements as deliberate falsehoods and treat the report accordingly.
  • Personal drug use by an offender does not automatically reduce moral culpability for supply offences. Where an offender is not a user, or where the supply was plainly for commercial profit, the drug use argument carries little if any weight.
  • Prior convictions for the same type of offending elevate the importance of personal deterrence as a sentencing consideration, even where those convictions do not formally constitute an aggravating factor under the relevant statutory scheme.
  • In dismissing the appeal, the Court confirmed that an objective seriousness assessment at or above the midpoint was open on the facts of a sophisticated, daily commercial supply operation involving multiple clients, counter-surveillance, and supply to other dealers.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2)

Cases
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Molesworth [1999] NSWCCA 43
- R v Novak (1993) 69 A Crim R 145
- R v Cavallin (Victorian Court of Appeal, 24 July 1996, unreported)
- R v Petrovic [1998] VSCA 95