The Queen v Scarfo[1997] QCA 17

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 487 of 1996

Brisbane

[R. v. Scarfo]

THE QUEEN

v.

DOMINIC ANTHONY SCARFO

(Applicant)

Fitzgerald P.

McPherson J.A.

Fryberg J.

Judgment delivered 4 March 1997

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 4 March 1997

The applicant has applied for leave to appeal against a sentence imposed upon him by White J. on 7 October 1996.  On that day, he pleaded guilty to unlawfully producing a quantity exceeding the quantity specified in the Third Schedule of the Drugs Misuse Act 1986 of a dangerous drug, cannabis sativa, between 15 July 1994 and 1 February 1995.  He was sentenced to imprisonment for six years with a recommendation that he be eligible for parole after serving two years, and it was declared that four days, between 31 January and 3 February 1995, had been spent in custody in respect of that offence and no other.

The applicant, who was born on 2 August 1943 and aged 53 years when he was convicted and sentenced, has no previous convictions.  He was one of a number of persons convicted and sentenced for the production of a cannabis sativa crop at Lochnagar Station, near Barcaldine.  He owns a farm in New South Wales, and told this Court that he migrated to Australia in 1955 at the age of ten, has worked hard since the age of 13, is devoutly religious and has always helped family and friends, and has six children, one newly born.  He said that a son who is 20 years old is not capable of running the farm, so that the financial problems which the applicant faced at the time when he became involved in the offence are worsening.  The applicant also informed the Court that he has health problems and spent a period in the Princess Alexandra Hospital following a cardiac arrest due to stress.

There were numerous other people involved in the production of cannabis sativa at Lochnagar Station, together with the applicant.  As is unfortunately common in such cases, various of the offenders were sentenced by different judges at different times.  All but one, Rocco Marando, had been sentenced prior to the applicant. 

On 20 November 1995, Helman J. sentenced five of the offenders.  One, Byron Bell Mansfield, was sentenced to imprisonment for two years which was wholly suspended with an operational period of four years.  Mansfield, who had no previous convictions, had pleaded guilty to an ex officio indictment and, although he expected to receive money for his involvement, it was found that there was an element of fear in his relationship with the others and, implicitly, that he was a relatively minor participant.  Two “crop sitters”, Thomas Sydney McCarthy and Phillip Stannard, were each sentenced to imprisonment for two years with a recommendation for eligibility for early parole.  Stannard, who had no material criminal history, cooperated with police and pleaded guilty to an ex officio indictment, was recommended for eligibility for parole after serving nine months.  McCarthy had no material previous convictions and his involvement had been limited to a period of three weeks.  He also had entered an early plea of guilty.  It was recommended that he be eligible for parole after serving six months.  John Robert Feil, the manager of Lochnagar Station, also had entered an early plea of guilty and cooperated with the authorities; he was sentenced to imprisonment for three years with a recommendation that he be eligible for release on parole after serving nine months.  Gary John Cullen, who also had cooperated with the police and pleaded guilty to an ex officio indictment, was sentenced on the basis that he had made the initial approach to Feil at the instigation of Galluzzo (referred to below) and was an intermediary between those at the site where the crop was produced and those who were more senior in the operation.  He was sentenced to imprisonment for four years with a recommendation that he be eligible for parole after serving one year.

On 2 January 1996, Byrne J. sentenced two other crop sitters, Mihai Secrieru and Romulus Novac, to imprisonment for one year with a recommendation for eligibility for parole after serving three months.  Both pleaded guilty to an ex officio indictment.  Each had left the site after a week and was considered to have a lesser involvement than McCarthy.  Byrne J. stated that he felt constrained by the sentence which McCarthy had received but would otherwise have imposed a higher head sentence and a later recommendation in respect of parole.

Three offenders sentenced by Thomas J. on 29 January 1996 included the major offender who was apprehended and charged, Dominic Galluzzo.  Another crop sitter, Jason Gary Grogan, was sentenced to imprisonment for 18 months with a recommendation that he be eligible for parole after four months.  His involvement was similar to that of McCarthy and he also had pleaded guilty to an ex officio indictment.  He received a lesser penalty than McCarthy because of his relative youth.  Salvatore Nardi, who also pleaded guilty to an ex officio indictment, was sentenced to two years’ imprisonment which was wholly suspended with an operational period of four years.  He had a previous good history and it was not possible to determine the extent of his involvement beyond the circumstances that he had helped procure Stannard’s services and was in communication with others, including Galluzzo.

The sentence imposed upon Galluzzo was nine years’ imprisonment.  An appeal to this Court resulted in a recommendation for eligibility for parole after three years in accordance with the attitude of the prosecutor at the sentencing hearing before Thomas J.  Galluzzo was involved in organising the production of cannabis sativa at three different locations, including Lochnagar Station, over a period of three years.  His method of operation was to approach a farmer who was vulnerable or facing hard times, using an intermediary, in order to obtain permission to grow cannabis sativa upon the property.  Thomas J. said that Galluzzo arranged the crop sitters and “made extensive organisation for the necessary expertise in production”.  His Honour added that “[t]he evidence reveals a familiarity on your part with all aspects of the marijuana industry from preparation through to distribution including the provision for money laundering of the proceeds in due course.”  His Honour also found that massive profits were expected, and that Galluzzo was well-connected and the only person to whom all others involved had to answer.  Galluzzo’s involvement was described as “upper middle management”, and his actions were referred to as “cynical, professional, organised ongoing crime”.  Mitigating factors included an early plea to an ex officio indictment, some assistance to police, health problems and a good work history.

The present applicant, Scarfo, was the next to be sentenced, but it is convenient to refer first to Marando, who was also sentenced by Thomas J., this time on 22 January this year.  His Honour considered Marando’s involvement greater than that of the applicant, and said that, but for the sentence which the applicant had received, Marando would have been sentenced to imprisonment for seven years with a recommendation for parole after three years.  However, Marando was given the same sentence as the applicant despite his more senior position in the operation principally because of his early plea to an ex officio indictment.  Whether or not that factor justified reducing the sentence imposed on Marando to that which had been given to the applicant, the sentences imposed on all offenders other than the applicant, including Marando, reveal a consistent pattern of comparatively lenient sentencing which takes account of the relative culpabilities and personal circumstances of the offenders.

The applicant complained that the Judge who sentenced him over-stated his involvement and the importance of his role in the operation, and that there was a disparity between the sentence he received and sentences imposed on other offenders.  However, it is important to recognise that it is only a manifestly excessive discrepancy between sentences imposed on co-offenders, such that there is an appearance that justice has not been done and a legitimate sense of grievance on the part of the offender who received the heavier sentence, which is impermissible.^[1]  Particularly when co-offenders are sentenced at different times by different judges and, frequently, by reference to different versions of events, a perfect symmetry between the various sentences is neither practical nor necessary.  The present case illustrates the absurdity of a contrary approach.  The judge who sentenced Marando reduced his sentence to that which had been imposed upon the applicant to avoid discrepancy between their respective sentences having regard to his Honour’s appreciation of their respective criminality.  While that view might have been excessively favourable to Marando, at least unless there was such a difference in their respective roles that his Honour has erred in principle in finding an overall basis for comparison between the two cases,  the reduced sentence imposed upon Marando cannot in turn provide a foundation for a reduction in the sentence which had earlier been imposed upon the applicant.

The production of cannabis sativa in which the applicant was involved was described as a “sophisticated commercial operation” which commenced in June or July 1994 and continued until a police raid on 31 January 1995.  A crop of 980 plants was then discovered, and there were plans for a further 3,500 plants in the near future.  The applicant and Galluzzo transferred Novac and Secrieru to the site in November 1994.  After Novac and Secrieru departed, the applicant and Galluzzo took Grogan and McCarthy to the site.  The applicant was also in frequent contact with Galluzzo by telephone, and they discussed matters ranging from financial arrangements with Feil and Cullen to the organisation of labour and equipment.  According to the applicant, there had been a breakdown of communications between Cullen and Galluzzo and he was merely acting as intermediary.  Even if it were true, and, as was submitted at his sentencing, the applicant was “at the working end of things rather than the engine room”, it would not mean that his role was not aptly described by the sentencing judge as “middle management”; her Honour had ample justification for that conclusion.

The applicant submitted that his sentence should have been wholly suspended, and that his involvement was analogous to the minor roles of Grogan and McCarthy.  He also emphasised his lack of previous convictions, his favourable work history and family commitments, and his cooperation with the police.  Although it is true that he pleaded guilty, it was a late plea, and he initially denied any knowledge of the operation until confronted by compelling evidence based upon surveillance and telephone intercepts.  Further, he provided no special assistance to police.

No basis for a suspended sentence was shown.  The position of the applicant falls to be considered in the context of the sentences imposed on Cullen, Marando and Galluzzo.  His involvement was less than that of Marando and Galluzzo, but greater than that of Cullen.  Had all been sentenced together, a sentence set between the sentences imposed on Cullen and Marando might have been appropriate.  However, if so, it could justifiably have been set towards the upper end of that range.

In these circumstances, in our opinion it cannot be said that the sentence imposed on the applicant was outside the exercise of a sound sentencing discretion.

Accordingly, we would refuse the application for leave to appeal.