R v Hicks & Pilarinos
[2000] VSC 236
•30 May 2000
| SUPREME COURT OF VICTORIA |
| CRIMINAL JURISDICTION |
No.1557 of 1998
| THE QUEEN |
| V |
| KEVIN JOHN HICKS and PETER PILARINOS |
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JUDGE: | Hampel J | |
WHERE HELD: | Melbourne | |
ATE OF JUDGMENT: | 30 May 2000 | |
CASE MAY BE CITED AS: | R v Kevin John Hicks and Peter Pilarinos | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 236 | |
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Criminal Law – Sentence – Theft – Burglary – Bribery - Trafficking in methylamphetamine - Police officer involved with co-accused - Manufacture of amphetamines – Sentencing considerations – Police officer in special position of trust - High level of corruption – Pleas of guilty - Remorse – Significant delay – Extensive publicity – Threats - Co-operation with police regarding other matters - Protective custody – General deterrence - Concurrency
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APPEARANCES: | Counsel | Solicitors |
For the Crown | B Morgan Payler QC and M Tinney | Office of Public Prosecutions |
For Kevin John Hicks | OP Holdenson QC and | Kenna Croxford & Co. |
For Peter Pilarinos | Brian Cash | Brian T.D. Cash |
HIS HONOUR:
Kevin John Hicks and Peter Pilarinos, you each pleaded guilty to one count of theft, one count of burglary and one count of bribery. The bribery in your case, Pilarinos, was in corruptly giving Hicks, a police officer, an inducement; in your case, Hicks, it was the receiving of such money corruptly. You, Pilarinos, also pleaded guilty to one count of trafficking in methylamphetamine. All of these were "rolled-up" counts alleging criminal activity between dates. The theft and burglary counts were between 21 January 1992 and 14 February 1993. The bribery was between 21 January 1992 and 15 March 1993, as was the trafficking.
The background to these offences and the circumstances in which they were committed appear in the outline of agreed facts common to both of your cases.
In 1988, the Drug Squad established a storage facility at Attwood. Locked containers were used to store chemicals and other items seized from illegal amphetamine laboratories and some semi-completed and completed amphetamine. The security system in the facility was poor; no inventory of the contents of the containers was kept and the locking was unsophisticated. You, Hicks, had been a member of the Major Crime Squad, but in January of 1992 became the assistant property officer at the Drug Squad with the responsibility for, and access to, these containers.
In April of 1992, an investigation was commenced by the Drug Squad into illegal drug manufacture during which the activities of you, Pilarinos, and others came under notice. Your premises were watched and telephone intercepts were made. Papers were found which had shopping lists for chemicals for the production of amphetamine. Telephone calls with others involved were intercepted. During this investigation, you, Hicks, were the property officer, not an investigator, but you took an interest in the progress of the investigation whilst dishonestly maintaining that you did not know Pilarinos. By October 1992 the operation was compromised and discontinued. In fact, while denying knowledge of Pilarinos, you, Hicks, were regularly meeting Pilarinos and visiting his house. From early 1992, there were a number of meetings of a group of people including you, Pilarinos and Mrs Pilarinos. The production of amphetamine was discussed at these meetings as was the difficulty of obtaining chemicals. You, Pilarinos, told your companions that you had a source within the police force who was in a position to get these chemicals. You, Hicks and Pilarinos, met with others and discussed the removal of such chemicals from the Attwood compound. Later, you, Hicks, provided the keys which opened the gate and the containers. On one occasion, over 150 litres of methylamphetamine were syphoned into containers and removed. There were a number of such thefts at which you, Pilarinos, were present.
The meetings between you continued. The manufacture of amphetamine commenced. A laboratory was first set up at your home, Pilarinos. As the manufacture continued, you, Hicks, were given money for providing access to the store and advising the group about the investigations. You, Hicks, informed Pilarinos that he was under investigation. You, Pilarinos, went overseas and you, Hicks, continued to meet the others involved. Ultimately, the laboratory was moved from place to place, but continued to operate. In mid-1992, an investigation disclosed that the contents of the containers had been interfered with. Substantial amounts of amphetamine had been removed by dilution and substitution.
You were both arrested in May of 1997. Diaries were seized with entries confirming the meetings which took place during the period covered by the presentment. Your diary, Hicks, had a reference in January 1992 describing your mental state as "angry", "hurt", "devastated". While the evidence supports these continuing activities during the period covered by each count, the actual number of entries to the Attwood store, the exact quantity of the material stolen and the amounts of money paid as bribes is unknown, as is the quantity of the amphetamine produced and trafficked.
As a result, both of you were charged with conspiracy to traffic in a drug of dependence, trafficking in a drug of dependence and bribery. In particular, you, Hicks, were charged with perverting the course of public justice. After your arrest, you were both released on bail. The committal proceedings took place on 20 April 1998. The trial was to proceed in October 1999, but its estimated duration made that impossible.
Following argument, I ordered that counts other than the conspiracy count be severed from the presentment and separate trials be given to the other accused. That left you, Hicks and Pilarinos, with one count each of a conspiracy to traffic in a drug of dependence. Ultimately, the trial was listed for February of this year. It was when the trial was about to commence that you both pleaded guilty - you, Hicks, to one count of theft, one count of bribery and one count of burglary, and you, Pilarinos, to one count of theft, one count of bribery and one count of trafficking in a drug of dependence, as well as the burglary charge.
Your pleas of guilty have undoubtedly saved a long and complex trial of some months' duration, thereby saving considerable cost to the community, court time, and, no doubt, considerable stress to witnesses. The full benefit of that aspect of your pleas of guilty must be given to you. Although these pleas can in no way be described as early pleas of guilty, it is, I think, significant that the counts to which you have pleaded guilty are different from the count of conspiracy and other counts on the original presentment.
You, Hicks, are 45 years of age. You were raised and educated in Hamilton. You are one of 4 children. Your father was a farmer; he had serious medical difficulties and died in 1992. Your mother lives in Hamilton on her own. You had a good relationship with your parents. You married in 1978 and have two daughters now aged 13 and 16. Your marriage broke down in 1989 when you separated. Your wife lives with your two daughters. You have continued to support and show concern for your family. You have a good relationship with your family and visit regularly. You have had two other significant relationships, both with policewomen. Your last relationship ended when you were arrested. You graduated from the Police Academy in 1974. After working at various stations you obtained the rank of senior constable and you were posted to the CIB where you remained for about 18 months before joining the Major Crime Squad. You served at the Major Crime Squad from 1982 to 1992 and were the longest serving member of that squad at the time. Apparently as a result of your unsatisfactory work record, you were transferred to the Drug Squad where you worked for 2 years as an assistant property manager. Finally, you were posted to the Benalla CIB where you remained until your arrest in May 1997. You have since been on bail and have worked as a truck driver.
From what you said to the psychologist, Mr Joblin, your time in the Major Crime Squad involved long hours of high pressure work together with overindulgent, social activity and excessive drinking. You attributed your marriage breakdown to those factors. Although you have no psychological disorder, you were, according to Mr Joblin, vulnerable and under psychological pressure. Your diary note, to which I have already referred, confirms this. Mr Spence, who was your district inspector in the Major Crime Squad and family friend confirmed your lifestyle and the pressures that were upon you. He said that you were remorseful for your betrayal and breach of trust. Mr Holdenson Q.C. who, with Mr Gullaci, appeared on your behalf submitted that your pleas of guilty and your remorse should be given significant weight and because the offences were part of the one course of conduct there should be total concurrency of sentences. He further submitted that weight should be given to the fact that as a former police officer your imprisonment will create hardship because you will be at risk from other prisoners and would have to be in protective custody. Mr Holdenson also relied on the significant delay not attributable to your fault, and agreed that you are a different person now compared to the person involved in these offences. I accept these submissions and have given them full weight in considering what sentences are appropriate for these crimes. I also, however, accept the Crown's submission that the bribery offence in your case reflects corruption of a high level. Not only were you a long-serving, experienced police officer, but you were placed in a special position of trust at the drugs storage facility. Your bribe-taking was not an isolated event and because of your association with Pilarinos and others you must be taken to have known that the purpose of the thefts was for illicit drug manufacture and trafficking. Similar considerations apply to the theft offence. Although the precise quantities are not known, the obvious inference is that significant amounts were taken over a period of time.
Although I agree that the offences in your case, in a sense, represent one course of conduct, total concurrency is, in my view, inappropriate except for the theft and burglary charges.
Finally, Mr Holdenson submitted that yours was a special case in which he felt it appropriate to submit that a non-parole period as part of your sentence should be no more than four years. Mr Morgan-Payler Q.C., on behalf of the Crown, did not submit that such an approach would be inappropriate. In my opinion, the sentences for your crimes must include a substantial component of general deterrence. The sentence must act as an emphasis to those in positions of trust in the situation that you were that receiving of bribes, particularly for theft of drugs from police stores for illegal drug manufacture, will not be tolerated. Whilst I was assisted by the submission of counsel about the appropriateness of the non-parole period of four years, I am not persuaded that in this case that is the correct approach. I think that such a non-parole period would have the effect of unduly diminishing the deterrent value of the sentences which must be imposed upon you. I note that the offences of theft, burglary and bribery each carry a maximum of 10 years' imprisonment.
Taking into account the mitigatory factors which I have mentioned and the need for general deterrence, the appropriate sentences in your case are as follows:
Count 1, the theft count, four years' imprisonment;
Count 2, the burglary count, three years' imprisonment;
Count 3, the bribery count, five years' imprisonment.
I order that two-and-a-half years of the sentences on counts 1 and 2 be served cumulatively upon count 3, making a total effective sentence of 7 and a half years' imprisonment. I order that five years be served before you become eligible for parole. I declare that 83 days have been served pursuant to the sentence and order that that declaration be entered in the records of the court.
You, Pilarinos, are 45 years of age. You migrated to Australia with your parents and two elder brothers in 1955. You are a close-knit family. Your parents were hard-working and devoted to you and migrated primarily for the benefit of the children's education. Your father worked for the railways and your mother worked in factories. They later managed a milk bar at Clifton Hill. Upon leaving school, you worked at your parents' store from time to time and also had odd jobs labouring, gardening, and buying and selling jewellery. Nevertheless you led a transient and unstable life and from 1972 you started offending. You commenced a relationship with Valerie Pilarinos in 1975. At that time she had 4 children from a previous marriage. You married in 1989, at which time you had 2 sons. Your relationship with her was described as supportive and loving, yet it was unstable, stormy and difficult. In October 1999 she was gaoled for 6 months for Social Security fraud and during this time you cared for your two sons, now aged 19 and 23. During the last nine years, your wife and children struggled financially, living off your wife's pension and some support from your mother. You received support from your family but were not significantly contributing to the household, at the same time driving an expensive BMW. During the past 17 years your family has lived in an opulent house in Doncaster owned by a Family Trust apparently controlled by your mother and brother.
Mr Cash, who appeared on your behalf, submitted that the past 10 years have been tumultuous. Your father suffered from dementia for a number of years and died in 1995. Your mother has poor health. Your wife was gaoled. Your eldest son was incarcerated. You were made bankrupt. Your home has been repeatedly searched and you have been traumatized by these proceedings and the publicity given to them. Ultimately, you were admitted to hospital for several days.
Your prior convictions are numerous. At the age of 17, you were sentenced to 9 months' imprisonment. The circumstances were described as involving a fight during which you assaulted a man. You were placed in H Division at Pentridge and were later transferred to C Division. In gaol at that age you were humiliated, frightened and intimidated. You formed associations with, and were influenced by, older, hardened criminals. As a result of this experience, you became bitter, aggressive and anti-social, and felt ostracized.
Mr Thomas Eades, a minister of religion, who has known your family for 40 years and who gave evidence on your behalf said that your attitude in 1972 was one that you had done your time, the world owed you a living, and you were out to get whatever you could from society. You have a number of convictions for dishonesty and assault, but apart from a minor conviction for possession of cannabis you have no previous drug convictions. You have also been convicted and sentenced to a term of imprisonment in absentia in Greece which prevents you from returning there.
Mr Watson-Munro, consulting psychologist, who saw you on a number of occasions during March and April diagnosed you as clinically anxious and suffering from long-term depression. This, he said, was aggravated by the fact that you have been unable to pay your respects to your father, who is buried in Greece. He described you as being street-wise, of modest intellect, and with a vulnerable disposition. Mr Cash relied on the fact that there was no evidence of the quantity of the material stolen or the quantity of the amphetamine in which you trafficked. Mr Tinney, for the Crown, submitted that whilst there was no evidence of the commercial quantity, about 2 kilograms of amphetamine and methylamphetamine were removed from Attwood and significant quantities of methylamphetamine were produced far in excess of a trafficable quantity. Mr Tinney further submitted that the trafficking offences should not be treated as being at the lower end of the scale, as was submitted, because it involved manufacture over a period of approximately 12 months and sale of the drugs at various locations. Mr Cash submitted that your criminality in the thefts and the bribery were substantially less than that of Hicks. Hicks, it was said, "held the whip hand" as he was a police officer in a position of trust. I do not agree with those submissions in respect of the charge of bribery. There is no evidence in this case as to who initiated the bribery and who was in a position of greater influence. As has often been said, the giver of the bribe may well be the corrupting influence on the receiver. In other cases, the offer or sometimes the pressure comes from the receiver. In my view, unless there is a clear basis for finding that one or the other was more culpable in the sense of applying pressure or making demands, both the giver and the receiver are equally corrupt and should be treated as such.
Mr Cash further relied on your cooperation with the police by the making of a long, detailed statement which seeks to give information and bring the extent of police corruption to the attention of the Ethical Standards Division. Mr Tinney submitted that a modest discount was appropriate because the value of the information was not significant. Also, there is no evidence of cooperation or assistance with the authorities in relation to the matters before the court apart from a plea of guilty. I heard evidence about those efforts and their value. I have concluded it is overstated although I am prepared to give you credit because you have given some useful information and, by doing so, have put yourself at risk in the future. This is confirmed from what I have heard this morning.
You have apparently received death threats and have been fearful for your life as well as the welfare of your family. Nevertheless, you have indicated that you do not seek to be placed in protective custody although that may have to be done and from what I understand this morning that has already occurred. That of course is a matter which, in your case as in Hicks's case, must be taken into account.
As to remorse Mr Eddie and your wife said that you have shown genuine remorse for the first time in your life not only in respect of your present offences, but your criminal activity throughout the years. This is mainly because of the distressing effect that this matter has had on your family. You also expressed profound regret for your criminal activity to Mr Watson-Munro who characterized your attitude as "criminal burn-out", a phenomena of men in their mid-40s to mid-50s with a history of institutionalization who want to change their lifestyle. Yet, in the context of remorse, I note the absence of information from you as to the amount of money which was given by way of bribes and the absence of information from you as to the details of your trafficking.
I take fully into account your plea of guilty which, although late, undoubtedly saved the cost and trauma of a long trial. Although you have been on bail, the delay, which is not attributable to your fault, has produced hardship to you and your family.
I agree that it is significant that there has been continuing, extensive and sensationalist publicity of this matter, some of which seems to have been exaggerated, which no doubt has had an effect on you and your family. I accept that you have been threatened and have felt at risk, and that is confirmed today. It is for that reason that I have directed that the reports that were tendered be brought to the notice of the gaol authorities.
I doubt the wisdom of such extravagant publicity before sentencing because, apart from the effect it may have on the prisoner, it might wrongly generate public perception that whatever sentence is imposed is influenced by what is said in the media.
I emphasize, as I did to Hicks, that despite giving full effect to such mitigatory factors as exist in your case, your sentences must also include a significant component of general deterrence and send a message that corruption by a member of the public, particularly in the area of drugs involving a police officer, will not be tolerated. As far as the counts of theft and burglary are concerned, I take into account the fact that you were not in the same position of trust as Hicks and that concurrency is appropriate. I note that the maximum sentence as to the count of trafficking is 15 years' imprisonment.
In your case, Pilarinos, the sentences of the court are as follows:
Count 1, the theft count, three years;
Count 2, the burglary count, two years;
Count 3, the bribery count, five years; and
Count 4, the trafficking count, four years.
I order that one year of the sentences imposed on counts 1 and 2 be served cumulatively upon the sentence on count 3. I further order that two-and-a-half years of the sentence on count 4 be served cumulatively upon the sentences on counts 1, 2 and 3. That makes a total effective sentence of 8-and-a-half years' imprisonment. I order that you serve a period of 6 years before becoming eligible for parole. I declare that 49 days have been served pursuant to the sentences, and that that be recorded in the records of the court.
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