R v Ciccarone [2001] ACTSC 50 (4 May 2001)

Last Updated: 11 June 2002

The Queen v Michael Anthony Ciccarone [2001]

ACTSC 50 (4 May 2001)

CATCHWORDS

Ex Tempore Judgment

No. SCC 230 of 1999

Judge: Justice J.E.J. Spender

Supreme Court of the ACT

Date: 4 May 2001

IN THE SUPREME COURT OF THE )

) No. SCC 230 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN

Plaintiff

AND: MICHAEL ANTHONY CICCARONE

Defendant

ORDER

Judge: Justice J.E.J. Spender

Date: 4 May 2001

Place: Canberra

THE COURT ORDERS THAT:

1. In respect of the offence to which the Defendant pleaded guilty, no penalty is imposed.

2. In respect of the offence for which the Defendant was convicted, a sentence of 4 years' imprisonment be imposed, to date from today.

3. That sentence be suspended immediately upon the Defendant entering into a recognizance, self in the sum of $1,000 to be of good behaviour for a period of 2 years.

4. A condition of that recognizance be that the Defendant accept the directions of the Director of the Australian Capital Territory Corrective Services, or his or her nominee and that, in particular, the Defendant undertake counselling as directed and attend the Credit and Debt Counselling Service.

REASONS FOR SENTENCE

1. On 23 April this year a jury in the Australian Capital Territory returned a verdict of guilty in respect of the charge against Michael Anthony Ciccarone that on 27 March 1999 at Canberra he possessed a traffickable quantity of a drug of dependence, namely methamphetamine, for the purpose of sale or supply to a person or persons. He had pleaded not guilty to that charge, but guilty to a count that on 27 March 1999 at Canberra he possessed a trafficable quantity of a drug of dependence, namely methamphetamine.

2. At the trial Mr Ciccarone gave evidence that he was in possession of the methamphetamine for his own use, and denied that it was for supply to another person or persons. The jury, by its verdict, rejected that evidence.

3. It is important to understand that the jury's verdict means that Mr Ciccarone did not satisfy them that his purpose of possession of the quantity of methamphetamine, in this case 8.64 grams of pure methamphetamine, was not for the purpose of sale or supply to another person.

4. I think it is relevant to accept, from a question that the jury asked during the course of its deliberation, that they were not satisfied on the balance of probabilities that it was not for the prohibited purpose. And it may very well have been that had the onus been on the Crown, they would not have been satisfied beyond reasonable doubt that that was his purpose.

5. Notwithstanding that aspect of the matter, Mr Ciccarone stands to be sentenced for the offence, for which the legislature has imposed a maximum penalty of 25 years or a fine of $100,000, or both. In this case, the amount of methamphetamine is more than four times the trafficable amount, and I have to say the story which was rejected by the jury was improbable. He told the jury that he purchased the drug, thinking it was cocaine, without any enquiry as to the quantity of drug that he was buying, nor its price.

6. In imposing sentence, I have to have regard to the matters in s 429A of the Crimes Act 1900 (ACT), and I do.

7. So far as the antecedents of Mr Ciccarone are concerned, he was born on 14 August 1965. He is married, and he and his wife have a son and daughter aged 11 and 13 years, respectively.

8. I have been supplied with a very helpful pre-sentence report prepared by Simone Fowling, the Acting Senior Probation and Parole Officer of the Community Corrections Unit. Mr Ciccarone left school at the age of 15, having completed Year 9. After leaving school he commenced his own concrete business, and he maintained that business until 2 years ago, when business began to deteriorate. It was at this time that he was charged with the current offences. He says that he believes people became aware of the court proceedings and, due to the nature of the charge, stopped using his business. He says that as a result of the lack of work, his business began to fail and he ceased all business activities in December 2000.

9. I have been supplied with a letter from his brother-in-law, who indicates that he is prepared to provide work for Michael Ciccarone on a contractual basis, and the work would involve preparation of concrete footings and slabs, driveways and footpaths, and other work that may arise from time to time.

10. I get the distinct impression that it was his increasing drug use which affected his work ethic, and which led, essentially, to his business failing. It is true also that his drug use has put great strains on his ability to provide for his family. I think it clear also that he has poor insight into the cost that his drug use has inflicted on his own health, his own work ethic, and on his family.

11. In the pre-sentence report this statement appears:

"The offender said he has not undertaken any counselling in relation to his cannabis or amphetamine use. He said he would be willing to attend such counselling if directed."

I really do think that it is necessary for him to understand the serious consequences that his drug use has had on himself and on his family. The pre-sentence report indicates:

"It is also noted that Mr Ciccarone does not acknowledge that his cannabis and amphetamine consumption was problematic. His belief that he was not dependent on amphetamines is doubtful. Although Mr Ciccarone has not attended counselling, he has expressed a willingness to do so, if directed. It is considered he would benefit from undertaking ongoing counselling to address his drug issues."

The report continues:

"It is difficult to assess Mr Ciccarone's risk of further offending. He appears to have little insight into his criminal activity. And his continual denial in relation to one charge indicates he is not willing to accept responsibility for his behaviour. His stated reason of using amphetamines is also a concern."

The reason that he advanced was that he used amphetamines to reduce weight.

The report continues:

"It is considered that unless the offender obtains stable employment, gains financial stability, and addresses his drug issues, he will remain at some risk of re-offending."

12. In respect of sentencing options, it is noted that he does not have the current ability to pay a fine. So far as a recognizance is concerned, he appears to have the ability to comply with a recognizance to be of good behaviour. The report says:

"If the court is considering this option, then the following conditions may be necessary: (1) that Mr Ciccarone undertake counselling as directed; (2) that Ciccarone attend the Credit and Debt Counselling Service. A period of supervision would enable this service to monitor Mr Ciccarone's progress and provide assistance where necessary."

13. The report indicates that he has been assessed as suitable for a community service order, and verbally consented to undertake a periodic detention order. And he has been told that he may receive a custodial sentence.

14. With regard to his criminal history, while there are a number of traffic matters, the only drug offence in his history occurred in 1994 when he was convicted of administering a prohibited drug, which was cannabis, and in respect of which offence he was fined $100. According to the pre-sentence report, Mr Ciccarone said that he had used amphetamines twice since his arrest and that he has continued to use cannabis.

15. I approach the sentence in this matter on the basis that the offence for which Mr Ciccarone has been convicted is a very serious drug matter, and that no other course than the imposition of a term of imprisonment is appropriate, so as to indicate the seriousness of the offence for which he was convicted.

16. There are, however, circumstances which persuade me that there is reason to suspend the whole of the sentence of imprisonment, on terms of entering into a recognizance to be of good behaviour for a period of 2 years, and on conditions that he receive counselling, as directed by the Director of Adult Corrective Services.

17. I have particular regard to the hardship that any term of actual imprisonment might have on his family, and the reason that I will sentence Mr Ciccarone to 4 years' imprisonment, but suspend that term on his entering into a recognizance forthwith, is the hope that he will regain his working ability, he will gain insight into his drug problem, and he will conquer it.

18. Mr Ciccarone is not in that class of organised drug dealer, some instances of sentences of which I have been taken to. However, he does have a serious drug problem, and the offence of which he has been convicted is a very serious one.

19. Please stand, Mr Ciccarone.

20. In respect of the offence to which you have pleaded guilty, I impose no penalty.

21. In respect of the offence for which the jury convicted you, namely that on 27 March 1999 at Canberra in the Australian Capital Territory you possessed a trafficable quantity of a drug of dependence, namely methamphetamine, for the purpose of sale or supply to a person or persons, I sentence you to 4 years' imprisonment, to date from today.

22. I suspend that sentence, immediately upon your entering into a recognizance, self in the sum of $1,000 that you be of good behaviour for a period of 2 years. It is a condition of that recognizance that you accept the directions of the Director of the Australian Capital Territory Corrective Services, or his or her nominee and that, in particular, you undertake counselling, as directed, and that you attend the Credit and Debt Counselling Service.

23. What that means is that you will not have to go to gaol, but that you will be on good behaviour for a period of 2 years. If you commit any offence in that time you are at risk of actual imprisonment for a very long time. Do you understand?

24. THE PRISONER: Yes, your Honour.

25. HIS HONOUR: Also during that period you will be under supervision, and you must do as directed by the Director of Adult Corrective Services. In particular, you must do something about your drug use. If in fact you fail to conquer that problem, not only are you letting yourself down and your family, but you will go to prison.

26. I hope you appreciate just how close you are to a very long time in prison. And I hope you appreciate that this is an opportunity to get your life back on track. Apparently, until recently you were a good husband and father to your two children, a good worker, but you have seriously gone off the rails. And this is your one chance to get back on the rails.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice J.E.J. Spender

Associate:

Date: May 2001

Counsel for the Plaintiff: Mr Todd

Solicitor for the Plaintiff: Department of Public Prosecutions

Counsel for the Accused: Mr Sabharwal

Solicitor for the Accused: Legal Aid Office, ACT

Date of hearing: 23 April 2001

Date of judgment: 4 May 2001