R v Luke John SPAROS

The guilty pleas 6The guilty pleas were entered in this Court on 1 August 2011. The offender was committed for trial on 28 July 2010. He was arraigned on 26 November 2010 and entered a plea of not guilty. His trial was listed for hearing on 14 April 2011. That date was vacated and it was fixed to commence on 1 August of this year, the date he entered his plea. 7The negotiations in relation to this matter between the Crown and the defence are, and were, extensive. They are set out in the Agreed Facts and the affidavit of Mr Hudson, which is part of Exhibit 1. It is clear that there had been some attempts to resolve issues relating to the plea in mid-2010. I note that Mr Moradian was sentenced on 13 July 2011 and on that date I determined a factual dispute about the amount of pure cocaine imported. 8In all the circumstances, it is clear that there is some utilitarian value in the pleas for the State offence and the Commonwealth offence. It is also clear that for the Commonwealth offence there is considerable facilitation of the course of justice. I will have more to say about this matter as I proceed to sentence. So far as the State matter is concerned it would be, in my opinion, appropriate to allow a reduction of the otherwise appropriate sentence of 12.5 per cent. While one is not always encouraged to give percentages in Commonwealth matters, it is my intention, for the reasons I will set out in my remarks, to allow a reduction in the otherwise appropriate penalty of something in the vicinity of fifteen percent.

Two serious offences 9Both the Commonwealth and State offences carry maximum penalties of, as I have said, life imprisonment. It is important to note that the maximum penalty for the Commonwealth offence becomes operative when amounts of more than two kilograms of cocaine are imported. So far as the State offence is concerned, the large commercial quantity figure cuts in at one kilogram. The State offence also carries with it a standard non-parole period of fifteen years. Those maximum penalties and the standard non-parole period, where applicable, act as guides to the exercise of my sentencing discretion. They indicate the seriousness with which Parliaments of the Commonwealth and New South Wales regard offences of the type now before me. 10When I formulate my sentence for the State offence I will also take into account the matter on the Form 1 by giving greater weight to considerations of personal deterrence and the community's entitlement to exact retribution for what was, in itself, serious offending. 11As will be clear from my findings, the supply offence does not fall within the middle of the range for objective seriousness for offences of its type. It would, in my opinion, fall at the very bottom of the range. This provides one reason for departure from the standard non-parole period, as does the plea, the subjective case, a finding of special circumstances that I will make, the need to take note of the other sentence to be imposed for the Commonwealth offence and the principles of totality. 12Every offender and every offence is, in a way, individual. Here, the sentence must be based on the Agreed Facts and the matter specific to the offender. Others apprehended following Operation Schoale have been sentenced by me. However, the facts in each case differ from the others. For example, the Agreed Facts here speak of two co-offenders being involved in the supply of firearms. Those co-offenders were not sentenced for offences of that particular type. Here, the offender faces the same two principal offences as the man, Moradian, but again the Agreed Facts differ from those agreed or proved against him. There is no rule of law that co-offenders be given the same sentence for the same offence. All things are rarely equal. Nevertheless, those other sentences act as a guide to the exercise of my sentencing discretion here. I take them into account. I have endeavoured to maintain due proportion between them. I note in particular the sentences imposed in Moradian [2011] NSWDC 130; Arja [2011] NSWDC 131; Johnson [2010] NSWDC 242, Peisley [2010] NSWDC 240 and Saliba [2010] NSWDC 277 (the offender's wife). 13I also note what occurred during the sentencing of two other men, Mato and Rusu by Judge Frearson (unreported, NSWDC 3 September 2010). Although no question of direct parity arises, there is a need to consider proportionality with this sentence. Those matters, however, involved multiple importations totalling over 200 kilograms of cocaine and those two offenders went to trial. Judge Frearson, there, characterised their roles as principals in the conspiracy. Here, there was a relatively sophisticated single importation using the same methods as those used by Mato and Rusu but there was a plea of guilty, a measure of co-operation and the Crown have agreed that the offender's role was subordinate to a person described as "a middle manager". 14So far as is relevant, I must also have regard to the pattern of sentencing for like offences. The Court of Criminal Appeal has recently set out the relevant principles for assessing objective seriousness of importation offences and referred to a number of cases to assist judges in the exercise of their sentencing discretion. I note Nguyen and Pham (2010) 205 A Crim R 106, De La Rosa (2010) 205 A Crim R 1 and Holland (2011) 205 A Crim R 429. The summaries in De La Rosa are very helpful but I must look to the facts as agreed here rather than simply make an attempt to compartmentalise this offender's crimes. 15I must sentence the offender for two offences. The purposes of sentencing, although one is a Commonwealth offence and one is a State offence, apply equally to both offences. It would be wrong to punish the offender twice for any elements and matters that are common to both. I must, however, fix an appropriate sentence and non-parole period for each offence and then consider questions of cumulation or concurrence as well as, of course, the question of totality. Factors relevant to the fixing of the term of the sentence are the same as those for the fixing of the non-parole period but the weight given to them may differ. The individual and total non-parole periods must reflect the minimum time period in all the circumstances of the offences this offender must spend in custody before being eligible for release. The total non-parole period must also maintain the benefits given in each sentence for the guilty pleas. 16In determining what sentence is to be imposed I must have regard to what is set out in s 16A of the Crimes Act 1914 (Cth) and ss 3A and 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 17Significant weight must also be given in the importation matter to principles relating to general deterrence, although that term is not used in s 16A. The principles in both Acts and the general common law recognise that, given the difficulty of detecting offences such as these and the great social consequences that are attendant on the illicit drug trade, the Court is compelled to attempt to neutralise the potential rewards by the risk of certain and severe punishment. 18As indicated, the supply shared a number of critical elements with the importation as the same cocaine was involved. The significant overlap in the criminality involved means most of the objects of sentencing apply equally to this offence and the importation. Given the way I will structure the sentence the supply offence's non-parole period has been subsumed by the non-parole period for the Commonwealth offence. I am, however, obliged to fix separate sentences for each offence and consider relevant New South Wales sentencing principles when fixing the sentence for the supply offence. 19I now turn to an assessment of the offences' objective seriousness. This requires an examination of the Agreed Facts. Those facts reveal that Mr T, who worked for an international freight business and whose identity cannot be revealed, had assisted Mato and Rusu with their importations of cocaine. The offender, together with his co-offender Alen Moradian, employed a private investigator to find Mr T. In October 2006 they paid Mr T a visit at his home. The visit so concerned Mr T's wife that she called the police. The two men left before the police arrived leaving $500,000 with Mr T as "a gesture of goodwill". Further meetings took place during which an illicit business proposition was put whereby Mr T would facilitate the importation of cocaine by providing relevant forged documents and the services of the company he worked for. The offender met with Mr T on a number of occasions with the offender, Moradian, and another co-offender, Mr Johnson. A further $1 million was paid to Mr T. A foreign exchange dealer was used by the offender and Moradian to change another $1AUD million to US dollars. This sum was involved in part-payment of the cocaine to be imported. 20Associates of Mr Moradian sourced the cocaine in the US. It was secreted in one kilogram blocks and packaged and sent via Mr T's company to Australia. In December 2006 the package arrived as a shipment labelled "Concrete Blades". It followed the same procedure adopted by Mr T, Mato and Rusu with their conspiracy. After the package had cleared customs Mr T took it to Homebush. Moradian met him there and directed him to a townhouse at Newington. There the package was unpacked. Although the townhouse was occupied by another co-offender, John Youkhana, this offender, as the Agreed Facts reveal, had an association with the premises. 21In the Moradian matter I examined the evidence relating to the amount of cocaine imported. It is agreed in these proceedings that the importation yielded a pure weight of cocaine of between forty to sixty kilograms, based on a purity of sixty-one per cent. It is important to note again the commercial quantity of cocaine required to found a s 307.1 charge and the maximum penalty of life imprisonment is two kilograms. 22As to the offender's role, the Agreed Facts note, so far as the s 307.1 charge is concerned, and I quote from those facts: "The offender was subordinate only to Moradian who was a middle level manager. The offender's role and participation was significant to give effect to the importation. His conduct encompassed the following: engagement of the services of the private investigator to identify and locate Mr T; participation in the initial meetings where Mr T was recruited to take part in the importation for them in preference to Mato and Rusu. Those meetings included the meeting on 27 October 2006, the meeting at the Chinese restaurant at Fox Studios and the continuation of that meeting at Johnson's premises. The offender did not take part in any subsequent discussions between Moradian and Mr T where the furtherance of the importation was discussed, including arrangements such as the weight of the importation and payment of money to Mr T for his services. The offender was associated with various rental properties used by the organisation in relation to the importation, receipt and unpacking of the cocaine partially in the presence of Mr T and the presence of Moradian; the organisation of the finances, including the facilitation of exchange of large amounts of Australian currency into United States currency to fund the importation; the collection of some of the proceeds derived from the importation". 23He is to be sentenced on that basis. 24Here, a very high commercial quantity of the drug with a correspondingly high street value was imported. The offender played a senior role in an enterprise that was well planned and of some sophistication. His role was important to its success. He took a degree of risk with an expectation of large reward. His motivation was personal profit and greed. 25I am anxious not to apportion a single label to this offender. The matters just discussed reveal he did very important things to facilitate the importation. Some of the things he did were critical to that importation. He expected, and received, a substantial reward. He wanted the lifestyle; the underworld prestige. His words from his letter to me are that he was caught up in the hype. He wanted the money and he wanted the goods that are associated with such large sums of money. It would appear that he wanted to play, and did play, the role of a major drug dealer. I find his motives were purely selfish and for greed. He took risks but, as he now says, he belatedly realises greater risks are taken by those who used the product he imported. 26As to the supply offence, the Agreed Facts reveal that one kilogram of cocaine mixture was sold by the offender and Moradian to Mr T on 20 December 2006 for $AUD90,000, about half the usual price. This is the only supply charged against the offender. Following any large illicit drug importation there is an expectation the drug imported will be supplied. Here, the actual supply charged appears to relate to a spontaneous gesture to a fellow offender. While clearly sold by both men to Mr T for profit, it was at a reduced rate and appears to me more as a gesture of goodwill. There is no evidence that the offender, unlike Moradian, chose to increase his profit or extend his criminal activity by acting as a wholesaler of the drug he had imported. 27I note that for offences pursuant to s 25(2) and the punishment provision in s 33 the large commercial quantity of cocaine which would attract the maximum penalty of life imprisonment is one kilogram. While a very serious offence in itself, that fact, and the other matters relating to the supply to Mr T, place this matter at the very bottom of the range for offences of its type. 28As it occurred as an incident of the importation a considerable degree of concurrency of sentences is required. When I consider the question of concurrence I take into account the compounding effects of long sentences. When I consider the sentences as a whole, and individually, I take into account those compounding effects: severity is not simply a product of length of sentence, severity increases at a greater rate the longer the sentence.

The Form 1 29While I must focus on the sentence for the primary offence, a Form 1 can and, as I have indicated, does lead to an increase in the sentence that would otherwise be imposed for the principal offence. Sometimes that increase can be considerable. Here, the offender asks that I take into account that he knowingly dealt with the proceeds of crime in the sum of close to two and a half million dollars. 30The immense sums able to be taken from users by drug traders are clearly illustrated in this case. The trade in drugs causes immense harm to the community and to individuals. Black money in the community also undermines the community's economic well-being. To willingly participate in the process, knowing what he was doing and knowing the source of the money was illicit, makes this particular matter on a Form 1, when one considers the sum involved, a very serious crime indeed. 31Some of the money involved was clearly and intimately involved with the importation, for instance the $500,000 given to Mr T and the $1AUD million changed into US dollars. Other sums involved the movement of the apparent profits of the importation. 32In February 2007 the offender travelled with Ahmed Arja to Queensland. On 28 February 2007 the offender and Arja were stopped and searched driving from Queensland to Newcastle with $814,000 in cash in the car. I sentenced Mr Arja to a suspended sentence of fifteen months for his role in this crime. I took into account the utilitarian value of his plea, the delay and his strong subjective case. 33The remainder of the money concerned with the Form 1 relates to luxury motor vehicles consistent with the large sorts of profits that can be made by involving oneself with the importation of illicit drugs. The Form 1 matter requires an increase in the sentence for the principal offence and militates against complete concurrence of that offence with that to be imposed for the Commonwealth matters.

Other matters 34The offender has a criminal history. He is not to be punished for that and it does not disentitle him totally to leniency. He came before the Children's Court for a serious assault offence. At nineteen he was acting as a distributor for a fairly major cannabis dealer. A Crown appeal saw a suspended sentence converted, by the Court of Criminal Appeal, to one year's imprisonment. At the time he was sentenced in the District Court he was, and presented as, a person with good prospects for rehabilitation but the Court of Criminal Appeal held that his circumstances were not so sufficiently exceptional as to justify a non-custodial sentence. 35That is, as I understand it, the law as it was at the time but my experience, confirmed by a recent study of the Victorian Sentencing Council, indicates for young offenders first custodial sentences carry real risks and not the expected deterrent effect. Gaol can provide a learning environment. It does not always encourage pro-social attitudes, rather you meet new peers and they can provide negative role models. Gaol can stigmatise a person and is rarely effective in addressing the underlying causes of criminal behaviour. 36The offender was sentenced by Judge Norrish QC for an offence which was committed on 19 April 2007. He had been in custody for some time when those sentencing proceedings took place. He received a short custodial sentence but it is important to note that his two co-offenders were not sentenced to full-time custody. He was not characterised as the worst of those offenders, although he did have, it appears, a worse record. If I were sentencing this offender for the offence which was before Judge Norrish, I, myself, would have made this offence concurrent. I note that his Honour imposed a full-time sentence because, as a matter of law, a suspended sentence was not available to him. I note this offence for which Judge Norrish sentenced him appears to have been committed while on bail for the offence which makes up part of the Form 1. 37In all the circumstances and given the length of the sentence I intend to impose, I believe it is appropriate that these sentences be concurrent with those imposed by Judge Norrish and I intend to start these sentences from 25 July 2007. The principle of totality, I believe, also compels that conclusion. 38There is a gaol history before me and it confirms what the prisoner wrote to me: that he has no discipline matters since he came into custody in 2007. The guilty plea was entered late on the day of trial. Because the principal sentence is a Commonwealth matter I must focus on what was done by this offender to facilitate the course of justice. I have a discretion as to the amount that I can reduce the otherwise appropriate penalty by the exercise of that discretion to take into account that facilitation of the course of justice. Such reductions in penalty are there to encourage pleas of guilty and to encourage assistance with resolving all issues. The reduction is not simply based on the timing of the guilty plea but it is, in many cases, a significant factor which must be taken into account. It is clear to me that this offender had the opportunity of pleading guilty much earlier than he did. 39So far as the State offence is concerned, while it did have continuing utilitarian value the plea was, as I understand it, totally conditional upon other matters being resolved in relation to the Commonwealth matter. I would, in the exercise of my discretion, reduce the State matter by a figure of 12.5 per cent. I note that there was an offer made by the defence in mid-2010 to plead to the Commonwealth offence, with the amount of drugs involved being identical to those to which he ultimately pleaded in August of this year, and that indicates some willingness to facilitate the course of justice. However, because such an offer was conditional and was held back until the matter came for trial, in the exercise of my discretion I have determined that a reduction in penalty of about fifteen per cent would be appropriate to recognise the facilitation of the course of justice here.

The offender 40The case for the offender is set out in the various Exhibits, numbered 1 to 10. There is no sworn evidence from the offender but most of the statements in Exhibit 1 relate to uncontroversial matters and they show some consistency. The offender was born on 12 November 1980. He is nearly thirty-one. These offences occurred when he was twenty-five and twenty-six. I found the report of the psychologist, Ms Player, very helpful. The factual foundation for her conclusions are supported in the other material before me. I detected no hint of exaggeration in her conclusions which were relevant and sound. 41It appears that the offender was the product of a difficult family background, marred by parental conflict, physical and emotional abuse. This is confirmed by the offender's sister's letter to me. It is also apparent that early anti-social attitudes were ingrained in the home environment. The offender received no real benefit from school and was expelled in Year 9. 42The background, which is set out in full in the letters to me and Ms Player's report, helps explain why he was tempted by the lifestyle of the drug dealer and by Mr Moradian who he had met at various times prior to his involvement with Moradian and the commission of these offences. They also show that he has some capacity for stable employment and that there are job offers available to him. He has worked in gaol. He is presently a head sweeper. As indicated earlier, there are no adverse prison discipline offences indicated against him. 43In custody he has suffered from anxiety, depression, pessimism and paranoia. All these responses could be expected from someone in his position, particularly given the considerable delay in bringing this matter to conclusion, the uncertainty attendant on that delay and the violence which is unfortunately still present in our gaol system, despite what I understand are considerable efforts to strike it out. I accept that he was, himself, seriously assaulted while in gaol and, as a consequence, will suffer continuing anxiety. The material before me in his letter is confirmed by information I received in other matters, that on entering gaol he weighed about 120 kilograms. He weighs now about a bit under eighty kilograms. Matters such as anxiety and paranoia could not have but been affected by the serious assault upon him. 44Because of the delay he has been unable to be classified. This is the unfortunate situation with remand prisoners. He has spent a very, very long time on remand in maximum security. Much of this delay has not been his direct fault. Even those who were arrested pursuant to Operation Schoale and pleaded guilty early were only sentenced by me late last year and this year, and some matters are still outstanding. As he has been in maximum security he has been unable to access all programs and that additional hardship has been taken into account by me in formulating my sentence. 45Ms Player notes that he remains determined not to re-offend. Those sentiments are expressed in his letter to me and are mirrored in the reports and references before me. 46The offender has clearly been disturbed by the break-up of his marriage and the fact that a daughter was born while he is in custody. His crimes mean that she has only known her father while he has been in gaol and he has missed the great pleasure a father can enjoy in caring for and seeing a young child grow. 47Ms Player notes the real need for assistance in coming to grips with his marriage break-up and the need for psychological intervention while he is in custody. She also concludes that that intervention will be necessary when he is released to parole and that his background is such that over-arching supervision by NSW Community Offender Services is a necessity. 48Mr Sparos, in his letter, speaks of his remorse and this is confirmed by other references. It is clear that he shows some insight into the problems the drug trade has brought, but reading all of those references and his letter brings to my mind more that he is sorry for what he has put himself and his family through and what he has lost rather than the harm he has caused others. 49Other references do indicate that he is at last growing up and that he is determined to do better and that his plans are sound and, with assistance, his prospects are good. I agree with Ms Player's conclusion: "His employment history and future work plans indicate that his job prospects are sound. He does not reveal any substance abuse problems that could complicate his adjustment to community living. As such, a sentence that allows Mr Sparos to maximise his time in the community whilst under supervision and receiving specialist professional supports will provide him with the best opportunity to address his recidivism risk and pursue a pro-social lifestyle in the long term". 50Those matters again support my finding of special circumstances in relation to the State offence and what some might regard as a generous non-parole period for the Commonwealth offence. 51Ultimately, however, it is the nature and circumstances and the objective seriousness of the importation offence that I have to put at the forefront, in particular this offender's role in that offence. When I come to formulate what I trust is an adequate sentence and punishment I have to take into account the seriousness of the offence. I also have to take into account his guilty pleas, his background and the impact of the sentence on him and his family. While I can properly recognise a subjective case put by an offender and the community interest in furthering his rehabilitation, a sentence for matters such as these must be harsh enough to deter him from following this path in the future. It must also, so far as is practical, attempt to deter others by showing simply that to engage in such conduct is not worth it. It must also recognise the harm crimes such as these cause individuals and the community in general and, in particular, it must operate to denounce such conduct.

Sentence 52Would you please stand Mr Sparos. In relation to Count 2, taking into account my finding of special circumstances and the matter on the Form 1, you are convicted and sentenced to a term of imprisonment of four years and four months, consisting of a non-parole period of three years and three months, to commence on 25 July 2007 and expire on 24 October 2010. The balance of the sentence is one year and one month, to commence on 25 October 2010 and expire on 24 November 2011. I would indicate that, but for the plea of guilty, a sentence of five years would have been imposed upon you. 53In relation to Count 1, the Commonwealth matter, you are convicted and sentenced to a term of imprisonment of fourteen years and six months. Your sentence is to commence on 25 January 2008. I fix a non-parole period of eight years and six months, to expire on 24 July 2016 on which date, subject to s 19AL Crimes Act 1914 (Cth), you are to be released to parole. There will be a parole period of six years, to commence on 25 July 2016 and expire on 24 July 2022. 54I am required to explain that sentence to you. The total sentence for the Commonwealth matter is fourteen years and six months with a non-parole period of 8 years 6 months and a parole period of 6 years. 55The total effective sentence I have imposed upon you is fifteen years with a non-parole period of nine years and a parole period of six years. If you accord with your practice to date of good behaviour in gaol you can expect to be released to parole on 24 July 2016. 56The s 166 matters shall be withdrawn and dismissed.

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