R v Pantazis [2011] VSC 629

3 In early 2006 Antonios Mokbel was on trial in this Court on a serious drug trafficking charge. He was on bail. On 20 March 2006 he failed to answer his bail and disappeared. A bench warrant was issued for his apprehension. The trial continued in his absence. On 31 March 2006 he was convicted and sentenced to a substantial term of imprisonment. These events attracted significant media attention. Considerable efforts and public resources were employed in an attempt to find and apprehend him. Amongst other things, a reward of $1,000,000 was offered for assistance which would lead to his apprehension.

4 After hiding for a time in Victoria, Mokbel was transported across Australia by road. He then secretly left this country on a yacht which had been purchased and refitted specifically for the purpose of enabling him to flee. He travelled to Greece via Egypt. He lived in Greece, in hiding, until he was eventually arrested on 5 June 2007.

5 Your husband, Bassillios (Byron) Pantazis, played a central role in enabling Mokbel to flee this jurisdiction and this country and to live in hiding in Greece. With the assistance of others, he arranged the purchase of a yacht, the "Edwina", upon which Mokbel fled the country; he arranged for Greek sailors to be engaged who sailed the yacht from Australia to Greece; he arranged for the transport of the yacht from New South Wales to Fremantle; together with your sister, Angela Nissirios, and your daughter (Byron Pantazis's stepdaughter), Yvonne Warfe, and two others, he physically transported Mokbel by road from Victoria to Fremantle; he participated in the arrangements whereby Mokbel was hidden in Fremantle and the yacht was prepared for international sea travel; he met the yacht as it travelled through the Suez Canal; and he personally undertook activities which enabled Mokbel to live in hiding in Greece.

6 Your husband, Byron Pantazis, was one of the central participants in a criminal enterprise directed at enabling Mokbel to flee the country and to live in hiding in Greece.

7 You were also a part of that enterprise. There is no dispute as to the activities which you performed which furthered that enterprise. There is a dispute, notwithstanding your guilty plea, as to the point at which you became aware that what you were doing was assisting Mokbel to flee and live in hiding.

8 There is no dispute that you performed the following actions:

• In September 2006 you asked your sister, Angela Nissirios, to purchase two mobile phones in her own name and you gave her the money to do so. She did as you requested. These two phones were used by Byron Pantazis, and by one of the Greek sailors, for the purpose of making arrangements in relation to the movement and the fitting out of the yacht upon which Mokbel fled.
• You asked your sister, Angela Nissirios, to travel to Sydney in September 2006 with you. She did so and you paid the cost of the transport. The two of you stayed at a hotel in Darling Harbour with your husband Byron Pantazis. Whilst in Sydney, Byron Pantazis arranged for Angela Nissirios to be named as one of the purchasers of the "Edwina", so as to satisfy a regulatory requirement. Angela Nissirios assisted Byron Pantazis in this and in other ways in relation to the acquisition of the "Edwina".
• You arranged for your sister, Angela Nissirios, to join your husband, your daughter, and others in the trip by road to Western Australia. That was how Mokbel was taken to Fremantle.
• On 31 October 2006 you signed an instruction to an enterprise named "Global Real Estate Services" in Greece seeking to procure an apartment. You were successful in securing that apartment by 3 November 2006, the date of a handwritten receipt for the payment of commission due on the apartment. The apartment you secured was at 22 Platonos Elliniko (a suburb in Athens). This was the apartment in which Mokbel and his then domestic partner were living at the time of his arrest in June 2007.
• In November and December 2006 you received and disbursed money in and out of your Greek bank account, at the Laiki Bank, acting as a conduit between criminal associates of Mokbel in Victoria and Mokbel in Greece.
• You arranged for your sister to deliver money and a bag of clothing to an associate of Mokbel's, who had also been involved in the arrangements for his flight, in Athens.
• You met with Mokbel in Greece in early June 2007 and delivered a suitcase to him.

9 On the plea it was accepted that you knew that the enterprise in which you were engaged concerned assisting Mokbel from when you arranged for the leasing of the apartment. Thus, you knew you were participating in an enterprise to assist Mokbel when you rented that apartment, when you used your bank account as a conduit for funds to Mokbel, when you arranged for your sister to deliver money and a bag of clothing to an associate of Mokbel's in Greece, and when you met Mokbel yourself in Greece in June 2007 and delivered a suitcase to him.

10 It was submitted on the plea that I could not be satisfied beyond reasonable doubt that you had known that the activities you were engaged in were directed towards assisting Mokbel to flee and to avoid apprehension when you asked your sister to purchase the mobile phones, when you undertook the Sydney trip, and when you arranged for your sister to take part in the trip to Western Australia. No evidence was led on your behalf on that issue. The submission made was that I could not be satisfied beyond reasonable doubt that you had knowledge of the purpose of the activities you were performing at that time.

11 In considering sentence, in relation to matters adverse to you I must be satisfied of those matters beyond reasonable doubt, but I may take into account matters in your favour which are established on the balance of probabilities.[1] I will return to the disputed factual issue.

12 You were not charged with any offences in relation to the activities to which I have referred until March 2009. On 25 March 2010 you were committed for trial. At the committal you pleaded not guilty. On 20 September 2010 a presentment was filed in this Court which contained a single count of attempting to pervert the course of justice between 10 May 2006 and 5 June 2007. You were arraigned and pleaded not guilty. After a number of directions hearings, your trial commenced on 2 June 2011. On 8 June 2011 I discharged the jury.

13 The reason for the discharge was that further evidence had come to light from your sister, Angela Nissirios. That evidence concerned arrangements you had made for your sister to deliver money and a bag of clothes to an associate of Mokbel's in Greece. Further police investigations consequent upon that development revealed the significance of documents concerning the leasing of the apartment in Greece, to which I have earlier referred. These document had been held by police since 2008 but the significance of them had not been appreciated. Notices of intention to call additional evidence were given on 8 June and 9 June 2011.

14 The possibility of a guilty plea was alluded to by your counsel at a directions hearing on 10 June 2011, but on 14 June 2011 at a further directions hearing the Court was advised that it was necessary to undertake further inquiries. On 20 June 2011 the trial was refixed for Wednesday 2 November 2011. At a directions hearing on 26 October 2011 the court was advised that a guilty plea was likely and the trial was refixed for Thursday 3 November 2011.

15 On Thursday 3 November 2011 a fresh presentment was filed over charging you with attempting to pervert the course of justice between 1 September 2006 and 5 June 2007. You were arraigned and pleaded guilty. You had always been on bail, and a fresh bail order with agreed special conditions was made that day until a plea hearing on 28 November 2011.

16 On 28 November 2011 I heard a plea on your behalf. At the conclusion of that plea you were remanded in custody.

17 On your plea a psychological report by Mr Patrick Newton dated 22 November 2011 was tendered on your behalf; and four testimonials, from your employer, from two of your children, and from your daughter in law were tendered.

18 The testimonials speak highly of you as an employee, as a parent, and as a person. You have no prior convictions. I proceed on the basis that prior to this offending you were a person of good character, and that you have not been involved in any further offending since then.

19 Mr Newton in his report sets out your personal background, and your counsel on the plea gave me a detailed history.

20 You were born in 1951 in Rhodes, Greece. You are now 60 years of age. You were 56 at the time of the offence.

21 You were one of four children. Your brother died in 1976. Your early years in Greece were hard. You received little formal education and you grew up in a strict environment.

22 You came to Australia with your family in 1964. In 1968, at the age of 16, you entered into an arranged marriage. The marriage was a very unhappy one. There were three children of that marriage; Maria, who now lives in the United States of America; Peter, who now lives in Sydney; and Yvonne, who was a co-offender with you.

23 You married Byron Pantazis in 1982. You also have three children with him; Steven, whose wife has given a testimonial for you and who is a soldier in the Australian Army stationed overseas; Joanna, who lived with you until you were remanded in custody; and John. Your son John, your employer, your daughter Yvonne, and your daughter in law were all present in court during the plea, demonstrating their support for you.

24 On the plea I was told that you had worked hard and confronted many difficulties throughout your life. In particular, since your husband's arrest and incarceration, you have had to work at two jobs in an endeavour to meet mortgage payments on your home in Reservoir. I was told that you have been struggling to meet those payments.

25 Mr Newton in his report expresses the opinion that you have two relevant psychological conditions. The first is that you suffer from depressive symptoms as a reaction to what he describes as your "legal predicament". Mr Newton says you are at significant risk of developing a more serious depressive mood disturbance and also says that there is a need for ongoing professional assistance. The second condition which he identifies is what he calls "dependent personality disorder". He expresses the opinion that because of the circumstances in which you were raised, intensified by your dysfunctional first marriage, you are and remain a highly dependent person. He expresses the opinion that you will go to considerable lengths to keep the approval of significant others.

26 It is important to observe that Mr Newton could not meaningfully address the circumstances of the offending itself. He relevantly states:

"Mrs Pantazis had particular difficulty discussing her offending. Mrs Pantazis told me that she had not initially had any awareness of the plan to assist Mr Mokbel and had only become aware of the true nature of her husband's activities at a later time. She could not elaborate further."

27 On the plea reference was made to the authorities dealing with mental conditions.[2] It was accepted that no connection had been demonstrated between any psychological condition and the offending which would reduce moral culpability, but it was submitted that your mental conditions were relevant to the kind of sentence to be imposed, to the burden of any sentence of imprisonment imposed upon you, and to the risk that imprisonment would have a significant adverse effect on your mental health.

28 I accept that imprisonment will be burdensome for you and that it will involve a significant risk of deterioration in your depression. These are mitigating factors which I do take into account. But it is only stating the obvious to observe that imprisonment is a depressing prospect for everyone, and that the circumstances of prison almost always involve a risk of depression or increased depression. I do accept, however, that imprisonment will be more burdensome for you, and more of a risk, as a result of your mental condition and personality, particularly given your age and the fact that you have had no prior adverse contact with the law.

29 Other mitigating factors put on your behalf were your guilty plea, your previous and subsequent good character, delay, your good prospects of rehabilitation and the absence of any need for specific deterrence, and a submission that I should take into account the lower maximum penalties provided for by s 43 of the Crimes Act 1914 (Cth) and s 325 of the Crimes Act 1958 on the basis that charges under those provisions would have been more appropriate than the charge which was laid and to which you have pleaded guilty.

30 Your guilty plea is a significant factor to be taken into account in mitigation. Your plea has facilitated the course of justice and has saved the community the time and cost of a trial. The extent of the mitigation referable to those circumstances is reduced by the lateness of your plea and by the fact that it came only after one trial had been commenced and had run for several days.

31 It was also submitted that I ought to conclude that your guilty plea was indicative of remorse and acceptance of responsibility. The testimonials tendered on your behalf were also relied upon in that respect. I am unable to find that you are remorseful and that you do accept responsibility. In the course of the investigation, the Court proceedings, and the plea hearing you have never revealed any information about the circumstances of your offending. The sequence of events in relation to the aborted trial and your subsequent plea leads me to conclude that you pleaded guilty only after you apprehended that the Crown case against you was overwhelming. Whilst I do not reduce the discount to which you are entitled because of the utility value of your guilty plea, I am unable to conclude that it is indicative of remorse or acceptance of responsibility.

32 I accept that, save for this offending, you are otherwise a person of good character.

33 I also accept that delay is a significant mitigating factor in your case. The delay which has occurred is explicable by the circumstances of the offending, the number of people involved, the consequent complexity of the investigation and the legal proceedings, and the fact that you did not plead guilty until a very late stage. Nevertheless, delay is important regardless of the reasons and I take it into account in your favour.[3]

34 I accept that there are good prospects for your rehabilitation and that specific deterrence is not a significant factor in your case.

35 I do not accept the submission made concerning s 43 of the Crimes Act 1914 (Cth) and s 325 of the Crimes Act 1958.[4]

36 I return to the disputed factual issue concerning at what point I can be satisfied beyond reasonable doubt that you knew the activities you were performing were part of a criminal enterprise directed towards enabling Mokbel to flee and to live in hiding.

37 It is hard to believe you had no knowledge of the purpose of your relevant activities before you rented the apartment in Greece. Amongst other things, your husband's central role; the coordinating nature of your own activities; and the timing, frequency and duration of your visits to Greece in 2006 and 2007 compared to your prior pattern of travel; suggest you must have known. On the other hand, there were other potential reasons for your visits to Greece, and Mr Newton's assessment of your personality as being one with a significant need for approval suggests the possibility you may have acted at the instigation of your husband without question or enquiry. I find I cannot exclude the possibility that you did not know the purpose before you rented the apartment. I accordingly accept that it has not been established beyond reasonable doubt that you knew the purpose of your activities before then. I do not find as a fact that you did not know,[5] rather I find I cannot conclude to the requisite standard that you did.

38 Issues of parity are clearly important. In that respect both counsel on your plea specifically addressed the sentences imposed upon Angela Nissirios and Yvonne Warfe.[6] The sentence imposed upon your sister, Angela Nissirios, was 2 years 9 months' imprisonment with a non-parole period of 17 months. It was submitted by your counsel that whilst it is conceded that Ms Nissirios was entitled to a significant discount because she pleaded guilty and cooperated with the authorities from a very early stage, and she undertook to give evidence against others involved in the enterprise, delay is a significant mitigating factor present in your case which was not present in hers. Reliance was also placed on the submission concerning the other charges said to be more appropriate, which I have rejected.

39 The undertaking given by Angela Nissirios, and her very early guilty plea, are significant mitigating factors present in her case which are not present in yours. I accept that the mitigating effect of delay is present in your case and was not in hers.

40 It was submitted on your behalf that a wholly suspended sentence would be appropriate. As I indicated in the course of argument, I reject that.

41 What you did was a very serious attack on our system of justice. General deterrence is important in this case.

42 I declare that the period of pre-sentence detention is 10 days.

43 If you had not pleaded guilty I would have sentenced you to a term of imprisonment of 5 years with a non-parole period of 3 years 6 months.

44 For the offence of attempting to pervert the course of public justice I sentence you to a term of 4 years. I fix a non-parole period of 2 years 3 months.

[1] R v Storey [1998] 1 VR 359, 369; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 281 and R v Cheung [2001] HCA 67; [2001] 209 CLR 1.

[2] In particular, R v Verdins [2007] VSCA 102.

[3] R v Merrett, Piggot and Ferrari [2007] VSCA 1; [2007] 14 VR 392.

[4] I do not accept the submission for the reasons I gave in my sentence of Bassilios (Byron) Pantazis: R v Pantazis [2011] VSC 54. On this hearing I was referred to Rasimi v The Queen [2011] VSCA 365 and to R v Young, Court of Criminal Appeal of the Supreme Court of Victoria, 2 December 1982, unreported.

[5] Such a finding would be on the balance of probabilities as a matter in the offender's favour.

[6] [2009] VSC 129. I have also had regard to the sentences imposed on others who assisted Mokbel: R v Pantazis [2011] VSC 54, R v Zeidan [2009] VSC 137, R v Issa [2009] VSC 633, R v Elias [2011] VSC 423.