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[2012] NSWDC 70
District Court of NSW
2012-03-23
Howie J
Original judgment source is linked above.
SENTENCE 1HIS HONOUR: Operation Schoale, a joint investigation by New South Wales Police and the New South Wales Crime Commission, resulted in the arrest of a large number of people associated with the importation, distribution or warehousing of cocaine and profits of illicit drug sale. 2The operation and the matters that resulted from it indicate the enormous profits which such crimes can generate. Louie Pucariello, the Offender, was an associate of the two principals in the importation, Luke Sparos and Alan Moradien. He was not a close associate, he just knew them. Mr Sparos is presently serving a sentence of fifteen years and Mr Moradien is serving a sentence of sixteen years and nine months. 3The agreed facts, Exhibit A1, reveal the police executed a search warrant on the Offender's home in Moorebank. I have seen the video of that search, Exhibit A7. Over $1.5 million in cash was found and just under 320 grams of cocaine was found. 4The matter has a lengthy history. It was listed today to resolve a factual dispute. The Offender has wisely chosen not to contest the agreed facts which are tendered as part of the Crown brief. Those facts can be reduced to a series of simple and basic facts, which reflect the critical elements of the two offences, for which he must be sentenced. The offender, by his plea, has accepted the elements of each offence have been proved and admitted his guilt to them. I propose, as is only proper, to sentence on the basis of the agreed facts. 5The cocaine was found in two areas of the kitchen. That in the pantry appears clearly to have been warehoused for return to those who the offender knew would supply it. Another smaller quantity was found in the kitchen with scales, bowl and spoon. There are a number of possible explanations for this: The first, it is a separate quantity, unrelated to the offence, available for his own use and, given s29 of the Drug Misuse and Trafficking Act also for supply; the second, it is part of the larger warehoused quantity which he had expropriated for his own use and which could have been disposed of to others, the balance of which was to be returned; or,a third, the drugs were his payment for involvement in this matter, which could only have been realised by its subsequent sale. 6The agreed facts do not assist. They simply note that this smaller quantity was for the purpose of supply. That term is vague. I apply so far as I can what is set out by the High Court in Olbrich (1999) CLR 270. I cannot find matters of aggravation proved unless they were established beyond reasonable doubt, and despite the Crown submissions, I am prepared to give the offender the benefit of those doubts I do feel are available to him. 7Explanation 2 seems to me, the most likely of the three simple explanations, but here I simply must sentence him on the basis that some of the drugs found were to be returned, to his principals for ultimate supply in the community and others were held by him for the purpose of supply. The way they were held does indicate that there had been some use of the smaller quantity of those drugs by the offender or perhaps others with whom he was associated. 8I note that the Offender told Mr Tim Watson-Munro, his psychologist, that he did not use illicit drugs. He said in evidence today that he told Tim Watson-Munro that he did not use illicit drugs, but I note that he has a prior conviction from 1987for use of illicit drugs. 9Returning to the agreed facts, the offender admitted to police that he had possession of the drugs and money. It is agreed that he was warehousing both money and drugs. At the relevant time police were closing in on Mr Sparos and members of his criminal group. This offender clearly agreed to hold the drugs and money and, if it had been successful, he would have enabled those persons to avoid police detection and prevent seizure of the drugs and money. 10I find that he well knew that the sale and possession of drugs was illegal and that when he returned them they were to be sold. He well knew that the money came from profits derived from supplying illicit drugs. He is not a naive man. He is not an ignorant man. He had the personal experience of serving time in jail for being involved in the supply of prohibited drugs. He is not to be sentenced again for those offences but they disentitle him to the leniency often shown first offenders. He also, as I have indicated, committed these offences knowing full well the true consequences of what would happen to him if he was caught. 11My use of the term "warehousing" should not be taken as minimising the seriousness of these offences. As the statement of Detective Sergeant Bailey (Exhibit A6) makes clear, the drugs found, if sold as packaged, could result in profits of between $65,000 and $100,000. If reduced to street deals considerably more money could have been made. The offender was helping others to avoid detection to allow the sale of cocaine to continue and to preserve the group's profit. That could be the only consequence of what he was doing. He was low in the hierarchy and only involved for a few days, but in that time what he did was play a crucial role which, had Operation Schoale not been so well executed, could have allowed the group's trade to continue. 12The distribution of illicit drugs causes considerable harm, not just to those who purchase and ingest such drugs, but to the community in general. The illicit trade in drugs is one of the principal sources for crime in the community. It is not just the sale of drugs, it is the crimes that are committed by those who seek to obtain funds for drugs and the destruction to family life and personal life that drugs cause. I am not here to give this offender or anyone else a lecture about the use of illicit drugs but it must be made perfectly clear, that those who involve themselves in any way with the sale of drugs for profit will almost inevitably end up in goal if caught. The seriousness of the supply offence is reflected in the maximum penalty of twenty years and fact that Parliament has sought to fix a standard non-parole period of ten years for these offences. 13Here the facts and personal circumstances of the offender provide many reasons for a significant departure from that standard non-parole period. So far as the proceeds of crime offence is concerned the offender acted to warehouse the money. There is no evidence that he shared in any benefits provided by that large sum of money but I cannot accept he acted out of pure altruism. He must have expected or received some reward. 14The amount of drugs and money alone, however, indicate the seriousness of these offences. As I have noted in relation to other related sentences I have imposed, the immense sums able to be taken from users by drug traders are clearly illustrated by this case. Like the trade in drugs, black money in the community also causes immense harm. It undermines the community's economic wellbeing. To willingly assist in this process knowing what he was doing and knowing the source of money was illicit, all matters which are elements of this offence, makes this when one considers the sum involved a very serious crime indeed. Despite the very strong subjective case, only full-time custody would reflect the objective circumstances of the two offences. 15I have to date sentenced a number of offenders caught following Operation Schoale. I cannot ignore the fact of those sentences nor can I ignore the fact that Sparos and Moradien exploited friends, relatives and associates in their attempts to hide their ill-gotten gains and their drugs. The sentences I have imposed for related matters range from a twelve months suspended sentence for recklessly dealing with $200,000 (Georges [2011] NSWDC 61) to three years and nine months for recklessly dealing with $10 million (Peisley (2010) NSWDC 240) and three years nine months for knowingly dealing with $4.5 million (Natasha Youkhani [2011] NSWDC 204). Tania Youkhani received a two year sentence for knowingly dealing with $2.5 million of the syndicate's money (Tania Youkhani [2011] NSWDC 63). 16All these offenders received the full benefit of a 25% reduction for their early pleas of guilty. Each offender, however, committed individual and different offences and each offender's personal circumstances differed significantly. I have regard to what fell from the High Court in Postiglione v The Queen [1997] 198 CLR 295 and more recently Green v The Queen [2011] HCA 49 about proportional sentences and the justice that must be achieved when sentencing those involved in the same criminal enterprise even where the actual offences differ. But, as I have said, each sentencing exercise is different and each offender an individual. 17 Sentences, however, should be applied to each offender, and each offence with consistent principles, but this does not require numerical or mathematical equivalence. Sentencing is not a mathematical exercise. It is a synthesis of competing features which attempt to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money see (Weininger v The Queen [2003] 212 CLR 629). 18Critical to the sentence here are the purposes of sentencing. A sentencing must by its severity seek to ensure others are not tempted to risk punishment for the rewards the trade in illicit drugs offers. The Offender too must learn not to succumb to temptation in the future. I am prepared to accept that he has learnt his lesson. 19 The Offender was arrested on 2 March 2007 and given Supreme Court bail on 5 April 2007. He served a period of one month and three days, thirty-four days for which he will be given credit. The Offender was committed for trial on 7 July 2010. His trial was listed to commence on 28 March 2011. The guilty plea was entered on 25 March 2011. Thereafter the offender has dismissed his lawyers and was for a period unrepresented. 20The matter was adjourned to enable fresh representation and could not be finalised because court time was not available. Despite the delay, as with all Operation Schoale's matters, the plea had utilitarian value. I am conscious of the points set out by Howie J in Borkowski [2009] NSWCCA 102 at [32]. While the timing of the plea is a critical factor no one factor can determine the exercise of a judge's sentencing discretion (see Howie J Thawer [2009] NSWCCA 158 at [46] and Muldrock v The Queen [2011] HCA 39). 21Here I propose to allow a reduction in sentence of 12.5%to reflect the plea's utilitarian value.
The Offender 22The Offender was born on 5 November 1953 and raised in Italy until he came to Australia with his family in 1970. He is presently in a long-term and solid domestic relationship. An early marriage broke up while he was in custody in the early 1990s. There are two surviving children from that marriage. After his release from jail, until he was injured in 2004, he worked hard with a pool finishing company. He has since that date been receiving, as I understand, modest workers compensation benefits. 23A pre-sentence report (Exhibit B) notes the Offender has benefited from a supportive relationship with his de facto and children, and that he has a son to that relationship. It notes, however, that there are unresolved mental health and financial burdens and that these appear to have contributed to his involvement in the matters now before the court. Supervision is not recommended as he is currently engaged in appropriate intervention services within the community. 24In the Offender's case, Mr McCrudden tendered a report from Mr Watson-Munro, psychologist (Exhibit 1) and medical reports and records relating to the 2004 work injury and its consequence. He also called the offender and the offender's partner, Ms Marchetta. 25The medical reports (Exhibit 2) are helpful and detail the considerable negative consequences of the work injury. Dr Prior's report (3/8/11) notes that he has a significant adjustment disorder with anxious and depressed mood, chronic pain perception, concern for his wife, who also suffers a serious cancer condition, and sleep apnoea. 26Dr Bodel, in his report of 3 February 2011, makes a comprehensive analysis of the consequences of the shoulder injury and the disability that this Offender suffers, which includes ongoing pain requiring constant medication. 27There are, in the other reports and assessments, which provide more than sufficient evidence to indicate the significance of the physical disability and its psychological consequences on this Offender. In his evidence today, the Offender said that recently a thrombosis has been discovered which will require observation and possible hospitalisation and medical intervention. He gave evidence of the impact of his sleep apnoea and his need to use a sleep machine every night. He gave evidence of the complex medication which he is taking. It is absolutely clear that any custody imposed upon this offender will be served much harder than would be served by a younger, fitter man. 28Mr Watson-Munro reports what I also noted from the time the offender appeared before me unrepresented, "he presents as an highly agitated and loquacious man". Today I note that he was much calmer and restrained. Although Mr Watson-Munro finds no indication of gross psychiatric disturbance he states: "it is clear that this man suffers substantial cognitive intrusions. These appear to be referable to self-reported symptoms such as memory loss, disorientation and anxiety about criticism". In Mr Watson-Munro's opinion his chronic pain has had a dramatic impact on him which in combination with other stresses has led to a high level of psychological distress requiring in future considerable psycho-therapeutic support. 29Not of all of what Mr Watson-Munro states as his opinion can be supported by the other material which is Exhibit 2 or in the evidence before me. I find it hard to accept his evidence that the mental distress which this offender clearly suffered as a result of his injury caused him to commit this offence, but it is clear as was given in evidence by his partner, that he is on occasions confused, he does interrupt and his manner of speech can be confusing and argumentative, often against his own interests. 30The material, particularly the evidence of Ms Marchetta, confirms he is a poor decision maker, and this is obvious from the history of this matter which I have summarised. It is confirmed in a number of his prior appearances before me and I am comforted to note that his appearance, manner and behaviour today has changed for the better. 31Ms Marchetta indicated the valuable assistance which the offender gives her around the home. She has suffered from cancer for many years. She is presently in remission but requires treatment including chemotherapy. It is clear that she needs this offender to provide support both material and personal and that his custody will cause her considerable hardship. It will also cause hardship to their son who suffers from ADD. 32The reports in Exhibit 2 confirm the offender has been receiving treatment not only for the physical effects of his work injury and the chronic pain that accompanies it but also for an adjustment disorder. There is a constellation in his life of significant stresses. As his prognosis for recovery from the shoulder injury and chronic pain resulting is guarded, and given other stresses such as his wife's illness, and the inevitable consequences of his criminal behaviour the offender presents as a man with long-term psychological problems for which treatment is required, and I will take that matter into account. 33It is apparent that although he will have support in the community he will require assistance in adjusting to normal community life and this compels a finding of special circumstances. His medical condition and the hardship he suffers also provides a special circumstance and all of the material here indicates a significant reduction of the non-parole period is warranted (see Hili [2010] HCA 45)). 34It is also clear that both his physical and psychological condition, especially pain management and sleep apnoea and psychological problems, will make his time in custody more onerous than that of other prisoners. It is a factor I take into account in reduction both of the sentence and consequently the non-parole period. I have tried to be careful in not double counting these matters. 35Comprehensive submissions were provided by the Crown and the defence. I have taken them into account. I am prepared to accept, from all the material before me that it is highly unlikely that this offender will ever on release commit a further offence. 36Mention must be made of the delay. He has been reporting very regularly to police, and that has a considerable impact over the years, but I have to note that this matter could have been resolved by the offender many, many years ago. His time on bail has proved his capacity to rehabilitate. 37I do not accept what is set out by Mr McCrudden in his submission in MFI 2 at page 19. It is clear that while this offender did not involve himself in any significant planning in the offence and it only took place over a few days, he was to a degree involved in what was clearly a planned long term illicit conspiracy. 38His role, however, was a very minor one, which had it not been for the amount of drugs and money may have reflected his own personal assessment of the matter. 39I do not find that his illness played any role in the commission of the offence given his age and experience, it is clear that he should have known better despite his attempts to minimise the seriousness of what was done. 40I accept what was set out in the pre-sentence report as to being the most likely motivation for his involvement, that is, a lack of judgment brought about by his psychological condition, and the need to attempt to alleviate the financial stresses he and his family were under. 41He was able to live a law abiding life since 1994 until this offence. He was able to lead a law abiding life while on bail. I suspect if it had not been for the stresses that flowed from the injury he would not have offended on this occasion. 42His injuries and psychological conditions do not, however, mitigate the offence. He well knew what he was doing and its consequences. He must be held to account for his criminal activities. Nevertheless, all of these matters compel a reduction in the sentence that would otherwise be appropriate based on the objective circumstances of the offence. It also compels a non-parole period which shall be 50 percent of the ultimate sentence imposed. 43Sentencing is not, however, simply about an offender. The sentences must reflect the fact that two serious crimes were committed and most of all the potential impact of those offences on the community. 44Both carry high maximum penalties; 20 and 15 years. The supply count has a non parole period of 10 years. 45Sentences must try by their severity to deter this offender and more importantly others from involving themselves in the drug trade. Even those low in the hierarchy who are involved only for days can expect a term of imprisonment. 46I also have to consider, as I have indicated, the sentences imposed on others and ensure there is some proportionality. 47What this offender did must be denounced and the harm to the community recognised. I must look at the totality of the criminal behaviour and ask what is the appropriate sentence for all that was done (Mill (1998) 166 CLR 59 at 63). 48Although separate offences were committed involving drugs and money there is considerable overlap in the offences objective circumstances and the subjective case in relation to each is the same. 49This is a matter which is suitable for the imposition of an aggregate sentence. What then is an appropriate sentence? Had it not been for the plea of guilty, sentences of 3 years 6 months for the drug matter and 3 years for the illicit cash matter would have been imposed. I allow, as I said, 12 and a half percent. 50I propose to impose an aggregate sentence. In relation to both matters you are convicted. In relation to Count 1, the supply of cocaine, as it carries a standard non-parole period, I indicate a sentence of 3 years with a non parole period of 1 year and 6 months. 51In relation to Count 2, the proceeds of crime matter, I indicate a sentence of 2 years and 7 months. 52I take into account the matter is noted bail and the fact that he has spent 34 days in custody. I take into account totality in my finding of special circumstances. I impose an aggregate sentence of 3 years and 6 months consisting of an aggregate sentence and non parole period of 1 year and 9 months to commence on 18 February 2012 and expire on 17 November 2013. 53You will be eligible for consideration for release to parole on the 17th of November 2013. 54The aggregate sentence parole period of 1 year and 9 months will commence on 18th November 2013 and expire on the 17th August 2015. 55That is total sentence of 3 years and 6 months backdated with a non parole period of 1 year 9 months.
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R
Louie PUCARIELLO