Giammaria v Regina; Karagiannis v Regina

Objective Criminality 5 In the case of each applicant Judge Finnane was furnished with a statement of agreed facts. 6 In the case of Mr. Giammaria the facts thus stated to his Honour were: "1. About 7 am on Thursday 8 April 2004, Drug Squad personnel with the assistance of Police from the Narrabri and surrounding areas executed a search warrant of the rural property known as "Valala" Jacks Creek via Narrabri. 2. Six persons were arrested within the house on the property (Penny Loisos, Bill Karagiannis, Dimitrios Passaris, Alecos Antoniades, Murat Hussein and Saverio Multari). Police found the house had numerous temporary beds scattered throughout and was clearly being used to accommodate persons employed to work on the property. Another three persons were arrested in the vicinity of the premises including Vasilios (Bill) Hatzis, his wife Vasiliki (Vicki) Hatzis in a car near the house and Jim Vamvouris. A further seven persons in the vicinity of a substantial crop site located within the boundaries of the property (Peter Antonopoulos, Steve Dourampeys, the offender, George Hatsiofidis, and Paul Mouzakis, Steve Salih and Con Spitopoulos). 3. The offender was interviewed at the crop site by video/audio and admitted he was working on the crop site cleaning cannabis leaves. He escorted police to a drying shed where he identified his jacket. He made further admissions to his knowledge of the drying process of the cannabis leaf. 4. The actual crop site is some two hundred square metres. The majority of all plants had been harvested and were drying on lines erected throughout the crop site. All plants were approximately six feet in height, and consisted of dense "head". Police located 41 plants still in the ground. The property was structured into three distinct crop sites. Crop (A) was the largest and originally consisted of 1300-1600 plants. The offender was working on Crop A and was to get a percentage of the profit from Crop A together with George 'Doc' Hatsiofidis and Peter Antonopoulos. 5. The offender in the knowingly take part in the cultivation of crop 'A' and Mr. Peter Antonopoulos were to receive a one quarter share of the actual cultivated cannabis of that crop between them. This share in essence amounted to a one eighth share of the cultivated cannabis of crop 'A' and in actual cannabis this amounted to the cultivated leaf from approximately 160 - 165 cannabis plants. 6. The cannabis having been harvested was being prepared for sale. 7. Crop B was the second biggest and consisted of 850 plants. 8. Crop C was the smallest and consisted of 450 plants. 9. Throughout the crop sites, large black plastic sheets were located, containing cannabis leaf/head. Approximately 30 of these plastic sheets were visible. On inspection each would contain in excess of fifty (50) kilograms of cannabis leaf. 10. A large drying shed which was totally camouflaged by black plastic sheeting was located in the vicinity of the crop site. This shed was powered by generators with heavy duty drying equipment in operation at the time of entry by Police. 11. She shed consisted of multi levels of drying beds. The drying beds contained cannabis head/leaf, with all drying beds being covered to full capacity. 12. The offender was taken to Narrabri Police Station and charged." 7 The sentence of Mr. Giammaria proceeded upon the basis that there was no significant dispute about those agreed facts. 8 In the case of Mr. Karagiannis the facts thus stated to his Honour were: "1. About 7 am on Thursday 8 April 2004, Drug Squad personnel with the assistance of Police from the Narrabri and surrounding areas executed a search warrant at the rural property known as "Valala" Jacks Creek via Narrabri. 2. Six persons were arrested within the house on the property (Penny Loisos, the offender, Dimitrios Passaris, Alecos Antoniades, Murat Hussein and Saverio Multari). Police found the house had numerous temporary beds scattered throughout and was clearly being used to accommodate persons employed to work on the property. Another three persons were arrested in the vicinity of the premises including Vasilios (Bill) Hatzis, his wife Vasiliki (Vicki) Hatzis in a car near the house, and Jim Vamvouris. A further seven persons were located in the vicinity of a substantial crop site within the boundaries of the property (Peter Antonopoulos, Steve Dourampeys, Robert Giammaria, George Hatsiofidis, and Paul Mouzakis, Steve Salih and Con Spilotopoulos). 3. The actual crop site is some two hundred square metres. The majority of all plants had been harvested and were drying on lines erected throughout the crop site. All plants were approximately six feet in height, and consisted of dense "head". Police located 41 plants still in the ground. 4. The property was structured into three distinct crop sites. Crop A was the largest and originally consisted of 1300-1600 plants. Crop B was the second biggest and consisted of 850 plants. 5. Crop C was the smallest and consisted of 450 - 550 plants with the principals being the offender and Dimitrios Passaris. Both were to get a percentage of the crop already harvested. 6. Throughout the crop sites, large black plastic sheets were located, containing cannabis leaf/head. Approximately 30 of these plastic sheets were visible. On inspection each would contain in excess of fifty (50) kilograms of cannabis leaf. 7. A large drying shed which was totally camouflaged by black sheeting was located in the vicinity of the crop site. This shed was powered by generators with heavy duty drying equipment in operation at the time of entry by Police. 8. The shed consisted of multi levels of drying beds. The drying beds contained cannabis head/leaf, with all drying beds being covered to full capacity. 9. The offender was taken to Narrabri Police Station and exercised his right to silence." 9 The sentencing proceedings in Mr. Karagiannis' case did raise for Judge Finnane's consideration some significant factual disputes. It is convenient to quote from his Honour's remarks on sentence those passages which distil those factual issues and explain how his Honour resolved them. 10 As to the issues themselves his Honour says: "The fact of his arrest, the fact of his involvement on the property, his being there and participating were not in issue. What was put in issue was the question, we he in fact a principal?" 11 His Honour then canvasses as follows the evidence that had been placed before him on that issue: "There were two witnesses who were called by the Crown to deal with that issue. One was Mr. Multari, the other was Ms Loisis. Mr. Multari had pleaded guilty before me, and had been sentenced before he came to give this evidence. I have already expressed in my remarks on sentence, which were made available to the other parties, various opinions about Mr. Multari. It would have to be said that when he appeared before me, I took into account obviously the fact that he volunteered to assist the police, in telling the police what he knew of others in this matter. He came to give evidence before me on 30 May this year concerning Mr. Karagiannis. He said that he met him on 24 February when he first went to the property, and that Mr. Karagiannis was there at the time. He had never met him before. He was working on crop C, which he said was owned by Mr. Karagiannis and two others, the two others being Mr. Passaris and Mr. Jim Hantzis. He said that Mr. Karagiannis told him this while he was there, and it was obvious to him because he was working under his instructions. Mr. Karagiannis was instructing him what to do each and every day, and he told him, Mr. Karagiannis told him that he was to get a third of this crop. He gave him all the instructions in relation to harvesting it, picking it, growing it, watering and everything else. He also said that Mr. Karagiannis used to package the harvested marijuana in the house that they were staying at in lots of one pound, these lots being placed into plastic bags. He had seen him do this on a number of occasions and on each occasion, he saw him packaging 50 or 60 pounds at a time. They were then stored until someone picked them up to take them to Sydney. Mr. Multari described how the cannabis was harvested, then taken to drying sheds and put in the drying sheds. He said that for crop C Mr. Karagiannis had the key. He agreed, when cross-examined, tht Mr. Karagiannis probably did not get possession of the key until 27 or 28 March, because Mr. Passaris had the key before that. It was put to him that the majority of the plants were sick and useless. He agreed that some were sick but they were not useless. As I would understand the totality of his evidence, anything that was diseased was cut off, and that part of the plant that could be harvested was harvested. Mr. Multari also said that Mr. Karagiannis claimed to own the machinery, the vacuum cleaners, the drying machines, and he had also claimed to own the drying shed. It struck me then, and still strikes me now that Mr. Multari was a credible and honest witness in whom I could place faith. Ms Loisis was called to give evidence. She had been Mr. Karagiannis' de facto. She appeared before Black DCJ before I had anything to do with these matters, and said that she would give evidence against others, and thus got a big discount on sentence. I have no idea what she told Black DCJ, but obviously his Honour formed a much more favourable view of her than I do. In my opinion, no reliance could be placed on Ms Loisis. It seemed evident to me that in giving evidence before me, she was attempting to put a construction on things which most favoured Mr. Karagiannis. For example, she claimed that although she worked in the house as a cook, she could not see through a screen door and notice anything else happening in any other part of the house, so she did not see Mr. Karagiannis packaging marijuana. To my mind, that was not true, and she was saying that in an attempt to make his position better. The Crown sought to cross-examine her and I gave leave on statements she had previously made. She then agreed with anything that was put to her, because she realised I think that she had already said it so she better do that. In the ultimate, I place no reliance on her evidence, and I think it a great pity that she was given any credit at all in her sentence for assistance. However what is done is done. Mr. Karagiannis gave evidence. It was not entirely easy to understand him. He had an interpreter with him who struck me as being quite incompetent, either that or he did not feel like interpreting. Mr. Karagiannis gave all of his evidence in English in a broken sort of way. At times it was difficult to follow what he was saying. Some of what he was saying, however, was just not believable. He put to me that he thought he would get $10,000 for his period up there, and maybe he would be given a 4-wheel drive car. He denied being a shareholder, and said that whilst he was on the property, he did little apart from drinking coffee, smoking cigarettes and telling jokes. I do not believe that those responsible for this commercial venture would have anybody on the property with them who did so little and I certainly do not believe that a person who did so little would expect to be paid $10,000 and get a 4-wheel drive car."

…………………………………………………………………………….. "I do not accept the evidence given by him that he did nothing much at this property, and that he was not a shareholder. I do not accept the evidence by Ms Loisis or him that she did not see him. I am quite sure she saw him packaging it, I am quite sure he was doing it. I am satisfied in fact beyond reasonable doubt that he, together with Mr. Passaris, and possibly Mr. Hantzis, was a shareholder in crop C. The finding about Mr. Hantzis is of no consequence in Mr. Hantzis' case. I have already sentenced him. Because the Crown did not wish this evidence to be used against Mr. Hantzis, I am bound by their view that they do not want it to be used. I have no idea why that was so, but that is what was done. In my opinion, Mr. Multari was an entirely credible witness. Mr. Karagiannis lacked credibility." 12 I can see no basis upon which this Court would be entitled properly to say that any of those findings of fact was not amply open to his Honour. 13 Based upon those findings, his Honour explained as follows what he saw as having been established beyond reasonable doubt about the true role of Mr. Karagiannis: "The conclusion then was that he was a shareholder. He is a man then, I conclude, who is prepared to get up in court before me and tell lies about his involvement. The fact that he is prepared to do that gives me some cause for finding that in his case there is totally no contrition, no remorse, and as far as rehabilitation is concerned, I would have to conclude that it is more doubtful than with some of the other persons." …………………………………………………….. "There is no evidence before me, from him, or from anybody to explain why he became involved in this enterprise, other than a claim by him in evidence that Mr. Vasilios Hantzis asked him to become involved, but as to his reasons, I could only conclude it would be so that he could make some money. Precisely how much money, I do not know. What a half or a third of this crop would have gained him is quite different to say. If he was to get $500 a day or $700 a day, multiplying it by the number of days he was there, that might be equivalent to what he could have expected as a shareholder, it is hard to say. I accept Mr. Multari's evidence that Mr. Karagiannis was there when he arrived; he was thus there for a considerable period. I also accept that he gave Mr. Multari instructions on what to do, and he took part in packaging the marijuana. There was no evidence of any greater involvement. He is not to be regarded as a principal, nor is he to be regarded as a manager. He is to be regarded as someone who was one level up from a mere worker, and someone who was going to get some additional benefit. Precisely who it was that was going to pay this additional benefit is completely unclear." ……………………………………………………………… "The Crown submits he should be regarded as a principal in relation to crop C. I do not agree. I think he should be regarded as someone having a minor management role, less than that of Mr. Dimitrios Hantzis in relation to crop B, but greater than that of Mr. Multari. His role would be equivalent to that of Mr. Antonopoulos. The fact that he and Mr. Antonopoulos were to share in different parts of the crop does not seem to me would make their role in assessing their criminality any different." 14 Once again, I can see no basis which this Court would be entitled properly to say that any of those findings of fact was not amply open to his Honour. 15 All of the above factual considerations being in place, it needs to be said at once, in my opinion, that each of the present applicants stood for sentence as an offender who had been complicit in a major commercial enterprise having as its objective the deliberate cultivation on a very large scale, and for financial gain, of prohibited drugs. No doubt the mere fact of that complicity does not define, more or less automatically, what sentence is ultimately to be passed upon a particular offender; but the fact is certainly the inescapable starting point for a correctly principled reasoning to that ultimate conclusion. What these applicants had been admittedly doing was, by any reasonable reckoning, seriously culpable, and not least of all because of its flagrantly contemptuous flouting of the law. In such a context it needs to be remembered clearly, and to be given serious effect in the ultimate sentencing outcome, that while a non-principal will normally be dealt with as being less objectively culpable than a principal in a flagrant and systematic flouting of the anti-drug laws of this State, it does not at all follow that a non-principal will receive, more or less as of course, a dramatically more lenient sentence. The relevant principles are examined by Wells J in Reg v Le Cerf (1975) 13 SASR 237 at 239; followed in, inter alia, Reg v Behar [1998] NSWSC 567 and Reg v Muanchukingkan (1990) 52 A Crim R 354. 16 When Judge Finnane came to fix an ultimate sentence for each of the present applicants, his Honour had regard to a sentence that he had passed, on 6 May 2005, upon another co-offender, Mr. Peter Antonopoulos. In that earlier sentence his Honour had nominated a head sentence of imprisonment for 8 years. His Honour dealt with Mr. Antonopoulos upon the basis that he had been actively working on the plantation for about 5 to 6 weeks, and that his financial gain was in the order of $700 per day throughout that period. His Honour described the work done by Mr. Antonopoulos as having been "…….. to tend the plants, to water them, fertilize them, cut off their leaves and make sure they stayed healthy". 17 I can see no basis upon which this Court would be entitled properly to say that his Honour erred in using the Antonopoulos head sentence as a general bench-mark in the cases of the present applicants. It does not follow, of course, that because there has been no appeal by Mr. Antonopoulos against his sentence, that the present applications are effectively doomed to fail. The present applications must be dealt with on their own particular merits.

Subjective Considerations and Special Circumstances 18 No present complaint is made by either applicant, at least not in any particular way, upon any of Judge Finnane's findings upon these two topics; and nothing further need now be said about them.

Were the Sentences "manifestly excessive"? 19 Apart from the Antonopoulos comparison adopted by his Honour, patent error is asserted by both applicants in connection with the head sentence of 8 years which his Honour took as a starting point in each of their cases. Such a head sentence, it is submitted, is contrary to antecedent authority. Particular emphasis is placed upon a decision of this Court, (Hunt AJA, Grove and Hall JJ), in Reg v Godden [2005] NSWCCA 160. 20 The relevant facts in Godden are stated as follows by Hall J who wrote, in effect, the judgment of the Court: "11. On 19 December 2002, police executed a search warrant and found a number of different areas under cultivation and a total of 319 cannabis plants ranging in height from seedlings of 20 centimetres to plants of 150 centimetres. In a partitioned area of a shed or garage there were two separate hydroponic systems used to grow cannabis plants at different stages of maturity. This area had some 39 cannabis plants and 24 seedlings ranging in height from under 30 centimetres to 1.5 metres together with a quantity of loose marijuana (taken into account on the Form 1). Within the area in the shed or garage, was a hydroponic incubator complete with heating pads. 12. The sentencing judge in his remarks on sentence referred to an elaborate series of hydroponic cultivation areas, which included an incubator and heating pad containing seedlings. There was a further concealed area in which 10 small plants had been meticulously arranged and nurtured in trays, whilst another concealed area housed more mature plants. The sentencing Judge commented upon the care and attention that had obviously been lavished upon the plants, so much that it could be described as "a highly professional cultivation". Whilst there are no doubt different levels of professionalism or sophistication in such matters, I do not consider his Honour's description to be an inapposite one." 21 On those objective facts the Court of Criminal Appeal allowed an appeal against sentence and re-sentenced upon the basis of a head sentence of 2 years 6 months. 22 Hall J, during the course of his Honour's reasons, examines four particular cases, each of which dealt with an offence of cannabis cultivation in a commercial quantity. The cases, the number of plants in each case, and the head sentence either upheld or passed by the Court of Criminal Appeal are:

Case Number of plants Sentence Reg v Westropp (unreported; CCA; 14/4/93) Not noted 3 years Reg v Douglas (unreported; CCA; 28/10/93) 861 3 years 4 months Reg v Field (unreported; CCA; 3/5/96) 662 2 years 8 months Reg v Puke (unreported; CCA; 12/9/97) 405 3 years

23 Of these four cases, Douglas and Field were successful Crown appeals against inadequacy of sentence. In those particular cases it is, therefore, necessary to construe the ultimate head sentences as being less than could have been passed properly at first instance. 24 It seems to me that the head sentence of 8 years before appropriate discounting, which Judge Finnane took as his starting point in each of the instant cases, is so far beyond the examples given above as to suggest error unless some particular distinguishing factor relevant to the instant cases can be identified. 25 That seems to me to entail an examination of the true inter-relationship of the cultivation of the three distinct crops that were identified as A, B and C. In examining that issue I concentrate upon the evidence of Mr. Multari which, as previously herein noted, Judge Finnane expressly accepted. 26 Mr. Multari, in his examination-in-chief, gave this evidence: "Q. After the crop had been picked and manicured, did you see him do anything with it then, after that? A. The packaging of it, yes. Q. Whereabouts was it packaged? A. Up at the house that we were staying at. Q. At the property? A. Yes. Q. There was a main house there? A. There was. Q. Packaging inside the main house? A. Yes. Q. HIS HONOUR Q. What was packaged? A. Marijuana. Q. What do you mean by packaging? A. Packed packages in pounds. Q. Into pounds? A. Yes. Q. Into plastic bags? A. Yes." 27 Later, in answer during cross-examination by counsel for three co-offenders other than Mr. Giammaria and Mr. Karagiannis, Mr. Multari spoke of "rules" affecting those who were working on the three crops. In particular he gave the following evidence: "Q. When you went there, to the farm, were there some rules outlined to you about where you could stay on the farm? A. Sorry? Q. For example, you were assigned to a shed near crop C? A. Yes. Q. Were there any rules made -- A. Where I worked during the day, yes. Q. What were they? A. That I worked with crop C and always had supervision. Q. That is crop C at all times whilst you were working? A. Yes. Q. Did you obey that rule? A. Yes, I did, except for lunch times. We might go for a walk at lunch times. Q. So sometimes you'd leave crop C and go for a stroll around the perimeter of the farm? A. No, not necessarily the perimeter. We'd go, I'd go or - crop B was right next door to us, we virtually worked together, and sometimes go to crop A. Q. Was lunchtime a designated time for all crops, in other words -- A. Usually. Q. -- say from 12 to 12.30? A. Usually yes Q. So when you'd go for your stroll at lunchtime, all of the workers would be tools down, as it were, and not working? A. Most of the time, yes." …………………………………………………………. "Q. These rules about which I asked you before included this, do you say - correct me if I'm wrong in any of this - you were always to stay in the position you were assigned; that's one of them? A. Basically, yes. Q. Not to talk to other people from another portion of the cannabis crop? A. Yes. Q. That's another one. You were not allowed to go back to the house on your own? A. Yes. That's correct. Q. Or to wander off out of the property? A. That's right. Q. And lunch was to be brought to you and other, and you were not to leave the property at any time? A. That's right. Q. And that was particularly mentioned to the workers, being yourself as one of them, is that right? A. Yes." 28 The impression I have from this material is that there were not three wholly distinct and compartmentalised enterprises involved in, respectively, the cultivation of the crops described in the evidence as crops A, B and C. There seems to have been, rather, a centrally directed enterprise for the cultivation of the three crops, various individuals having been recruited to do things particular to some one of the three. 29 It is relevant to note the way in which Judge Finnane dealt with this matter of overall enterprise. During his Honour's remarks on sentence in the matter of another co-offender, Dimitrios Hantzis, his Honour said: "The crop of marijuana was a large one. Police have estimated the total value of the crop to have been $40 million. On the premises there was a house, there were drying sheds, there was equipment for the cutting and bagging of marijuana, and there was evidence in the drying sheds of the hanging of marijuana for the purpose of drying, and the placing of marijuana on trays." And later: "There can be no doubt that some person, or persons, set up this large growing concern, and some person or persons had the plant and equipment and organised the training of those working there, and was prepared to make arrangements to distribute and sell the marijuana. However, the facts do not enable me to say who it was or what persons it was, that were responsible for setting up this operation. It is not possible for me to determine who was the principal criminal mastermind, or masterminds. A Mrs. Antoniades apparently owned the property and she has since left the country. That, in itself, does not establish that she is the criminal mastermind, nor indeed is there any evidence that she had anything to do with the growing of the marijuana or its distribution. Mr. Dimitrios Hantzis' father was one of those charged with these offences. He died during the course of time that elapsed between the arrest of the persons involved and eventually the hearings before me. Mr. Dimitrios Hantzis has produced evidence aimed at convincing me that the whole operation is really his father's operation, and he was brought into the matter by his father, and became involved as a matter of family loyalty, his involvement being a reluctant one. No satisfactory evidence has been produced to establish this. I will refer to some evidence in a little while, but I make it plain I do not regard it as at all satisfactory. I am unwilling to make any finding that the late Mr. Vasilios Hantzis was the person in charge of this operation, either generally or in respect of some part of it. It seems to me too convenient a matter to attribute liability to a dead man. The marijuana growing area of this property, which was not the entire property, as I would understand it, was apparently broken into three lots, A, B and C, and each person who has been brought before me has been brought before me on the basis that he, or in the case of Mrs. Hantzis, she, was involved with one or other of these lots. No person has been brought before me on the basis of their involvement in an overall enterprise. To my mind, there is some unreality about all of this. There could be no doubt in my mind there was an overall enterprise, and it involved the growing of $40 million worth of marijuana, but the Crown cannot establish that any of these people were involved in the enterprise in an overall sense. All they can establish is the involvement of each of the persons to the extent to which I will shortly mention. The sentence which I impose on each of them takes into account the findings which are able to be made arising from the very limited case against each of them." 30 I agree respectfully with the entirety of these remarks, but with the rider that, in my opinion, it is fairly to be found against participants such as the present offenders that, if they were not in a precise legal sense parties to the whole of the undoubted overall enterprise, they cannot have failed, nevertheless, to appreciate that they were participating, on the view most favourable to them, in at least a significant part of such a large enterprise. 31 I acknowledge that in some of the cases offered for comparison there were features such as the committing of an offence while subject to a bond, which are not present in the two instant cases. That consideration militates in favour of the present applicants when their sentences are compared with those other comparative sentences. Mr. Giammaria was particularly involved with crop A, the number of plants in which was roughly twice the number in Field, although his expected profit equated to the cultivated leaf from 165 plants; while Mr. Karagiannis was particularly involved with crop C, the number of plants in which was roughly equal to the number in Puke. All such comparisons are, of course, of indicative, rather than of prescriptive, value. 32 In the end I am not persuaded that a head sentence calculated from a starting point of 8 years is within the available range suggested by the decisions put forward for comparison. The present offences call undoubtedly for condign punishment; but a starting point of 8 years as an undiscounted head sentence for a non-principal whose actual precise participation cannot be put higher than participation in one of three parcels, seems to me to exceed what current authority, applied fairly and consistently, can support. 33 I believe that an undiscounted head sentence of 6 years would be appropriate in each case. Discounting for the plea of guilty would reduce that figure to 4-1/2 years. An apportionment based upon Judge Finnane's findings of special circumstances in each of the cases, but retaining an overall recognition of the overall flagrant criminality involved in each case, would be fairly recognised, in my opinion, by the setting of a non-parole period of 2 years and a balance of term of 2-1/2 years in the case of Mr. Giammaria; and by the setting on a non-parole period of 3 years and a balance of term of 1-1/2 years in the case of Mr. Karagiannis.

Orders 34 I propose, therefore, the following orders: In the case of Giammaria:

[2] Appeal against sentence allowed. Sentence quashed. Re-sentence to a non-parole period of 2 years commencing on 8 April 2004 and expiring on 7 April 2006, with a balance of term of 2-1/2 years commencing on 8 April 2006 and expiring on 7 October 2008.

[2] Appeal against sentence allowed. Sentence quashed. Re-sentence to a non-parole period of 3 years commencing on 8 April 2004 and expiring on 7 April 2007, with a balance of term of 1-1/2 years commencing on 8 April 2007 and expiring on 7 October 2008.

35 LATHAM J: I agree with Sully J. **********

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