R v Panagakos
[2003] NSWCCA 81
•1 April 2003
Reported Decision:
138 A Crim R 538
New South Wales
Court of Criminal Appeal
CITATION: R v Panagakos [2003] NSWCCA 81 HEARING DATE(S): 27 March 2003 JUDGMENT DATE:
1 April 2003JUDGMENT OF: Studdert J at 1; Smart AJ at 33 DECISION: Leave to appeal granted; appeal allowed; sentenced quashed; in lieu thereof sentenced to a term of imprisonment for ten years to commence 3 August 2000 and to expire on 2 August 2010 with a non parole period of six years six months to commence on 3 August 2000 and to expire on 2 February 2007. CATCHWORDS: Criminal law - application for leave to appeal against sentence - supply large commercial quantity of heroin - Form 1 offence - another offender earlier sentenced - parity - whether sentence excessive. LEGISLATION CITED: Drug Misuse and Trafficking Act, s 33(3)
Crimes (Sentencing Procedure) Act 1999, s 32CASES CITED: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 [2002] NSWCCA 518
R v Thompson (2000) 49 NSWLR 383PARTIES :
Regina v Bill Panagakos FILE NUMBER(S): CCA 60021/03 COUNSEL: M.C. Grogan (Crown)
G.J. Stanton (Applicant)SOLICITORS: S.E. O'Connor (Crown)
Jack Rigg (Applicant)
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/11/0019 LOWER COURT
JUDICIAL OFFICER :Dalgleish ADCJ
60021/03
Tuesday 1 April 2003STUDDERT J
SMART AJ
1 STUDDERT J: The applicant, Bill Panagakos, seeks leave to appeal against a sentence imposed by his Honour Acting Judge Dalgleish on 17 July 2002. The applicant had earlier pleaded guilty to an offence of supplying a large commercial quantity of heroin . That offence was one which attracted a maximum penalty of life imprisonment under s 33(3) of the Drug Misuse and Trafficking Act. The sentencing judge was also asked to take into account under s 32 of the Crimes (Sentencing Procedure) Act 1999 an offence of supply a commercial quantity of cocaine.
2 The applicant was sentenced to a term of imprisonment for ten years, backdated to commence on 3 August 2000 and to expire on 2 August 2010. His Honour specified a non parole period of seven years six months, to expire on 2 February 2008.
3 The sentence was backdated to the date of the applicant’s arrest, from which time he was refused bail.
4 The applicant was one of four persons identified in a network involved in the supply of heroin and cocaine. The supply outlet was a hotel, known as the Discount Hotel in Darlinghurst Road, Kings Cross. A person named Noureddine Laa Laa was allegedly in charge of the operation. A man named Eli Geadah was employed by Laa Laa to oversee the supply of drugs to the salespersons at the hotel. It was his task to ensure that those directly engaged in the selling did not run short of drugs and it was his further task to collect the money from sales made. The applicant and a man named Tony Ganem were responsible for the supply of heroin and cocaine from a room on the third floor of the hotel. The drugs were sold in capsules contained within rubber balloons. Red balloons contained .25 grams of heroin and sold for $80. Green balloons contained .20 grams of heroin and sold for $50. Yellow balloons contained .20 grams of cocaine and sold for $60.
5 Customers who attended the hotel went to a designated room in which either Ganem or the applicant, who worked alternate twelve hour shifts, attended to their orders. In turn Ganem and the applicant would account to Geadah for the proceeds of sales made. The applicant was paid either $200 or $250 per shift, as was Ganem.
6 The offence charged was alleged to have occurred during the period from 6 April to 3 August 2000. As a result of the observations of surveillance police and the monitoring of phone calls, the four men named, including the applicant, were arrested on 3 August 2000.
7 There was evidence from the offender Ganem establishing that the takings per shift were of the order of $15,000 to $20,000, and this would indicate that sales would have aggregated two kilos of heroin and two kilos of cocaine over the period the subject of the charge. Under the statute of course, one kilogram constitutes a large commercial quantity. I observe as to the supply cocaine offence on the Form 1 that it relates to a commercial quantity, not a large commercial quantity.
8 There can be no question but that the offence to which the applicant pleaded guilty was a very serious offence indeed. The maximum penalty set by the legislature emphasises that this is so.
9 Also very grave was the offence to be considered on the Form 1, the features of which are to be found in the above summary.
10 The applicant was born on 4 March 1969. The pre-sentence report records that he had a non-remarkable childhood and completed his higher school certificate and he informed the author of the report that he experienced no problems in school years. As a young man he formed a relationship with a girlfriend but this broke up after some four years and the applicant said that this was because of his drug abuse and his gambling. At the age of twenty the applicant became a partner in an oyster business but this disintegrated three or four years later when he withdrew moneys to fund his substance abuse and gambling, and thereafter the applicant held only temporary positions in the hospitality industry for short periods of time. The applicant told the author of the pre-sentence report that his involvement in the commission of these offences was prompted by his wish to pay off his debts incurred in relation to his substance abuse. A Dr Dore, psychiatrist, assessed the applicant in April 2002 and gave the following opinion in a report tendered to the sentencing judge:
- “Mr Panagakos unfortunately became involved in selling cocaine and heroin at a time when he was unable to financially support his own addiction to cocaine. He had a long history of cocaine addiction, marijuana addiction and compulsive gambling prior to this time. While any form of drug-dealing cannot be condoned, it appears that his role was as a middle man, fronting the sales of drugs to users, rather than coordinating the importation and packaging of heroin and cocaine. In my opinion, he would benefit from a period of rehabilitation and counselling to address his addictions to cocaine, marijuana and gambling. These are all disorders with high rates of relapse, and his risk of relapse in the future may be reduced by a period of intensive rehabilitation.”
11 As his Honour remarked, the applicant had little by way of criminal record. There was an offence of possession of a replica pistol in 1987 and in the following year he was fined for offences of stealing and possession of a prohibited drug at the Burwood Local Court.
12 By the time he came to be sentenced the applicant had been in custody for some twenty months. The judge accepted that he had not used drugs in that period.
13 The applicant was to be given a discount for the utility value of his plea. His Honour also found there was evidence of some remorse but the judge regarded it as a matter of conjecture as to whether his remorse was remorse for his conduct or remorse for being caught.
14 It was submitted on behalf of the applicant that the judge fell into error in his approach to parity, and also in determining what discount to allow for the applicant’s plea of guilty.
15 As to parity, the submission developed from a consideration of the sentence imposed upon the offender Ganem. This offender was sentenced by Judge Armitage in June 2001, having pleaded guilty to two charges of conspiracy to supply a prohibited drug, being an amount not less than the large commercial quantity, and one charge of supplying a prohibited drug on more than three separate occasions between 27 June 2000 and 26 July 2000. The conspiracy charges related firstly to heroin and secondly to cocaine. Both drugs were the subject of the third charge. In sentencing Ganem, Judge Armitage also took into account several scheduled offences, namely:
(a) goods in custody, being a sum of money in excess of $6000 found to be in Ganem’s possession when he was arrested;
(b) possession of cannabis;
(d) deemed supply of cocaine.(c) deemed supply of heroin; and
16 Judge Armitage determined that but for assistance given to the authorities he would have sentenced Ganem to ten years imprisonment by way of head sentence with a non parole period of six years for each of the conspiracy charges. However, because of assistance given, Ganem was sentenced to imprisonment for five years on the first two counts to be served concurrently and on the third count to imprisonment for eighteen months, also to be served concurrently. The judge fixed a non parole period of three years on each of the conspiracy counts and one of ten months on the third count.
17 Mr Stanton here argued that Acting Judge Dalgleish, having first considered that the parity principle was attracted, fell into error in the adjustments that he made from a starting point of a head sentence of ten years. Firstly, it was submitted that Ganem had pleaded guilty to two counts of conspiracy whilst the applicant had pleaded guilty to only one count of supply heroin. Secondly, Ganem’s criminal activity extended for a period of twelve months and not only the lesser period expressed in the supply count to which the applicant pleaded guilty.
18 I shall return to this parity question later, but at this point I observe that it seems to me that the learned judge fell into error in his approach to his sentencing task. His Honour appears to have adopted the approach of taking as a starting point the sentence imposed upon Ganem and then deciding what departures from such sentence were warranted. In my view, that approach was incorrect. I shall return to this presently.
19 Turning to the submission as to the discount for the plea, Acting Judge Dalgleish concluded that nine years would have been an appropriate sentence having regard to parity but that, taking into account the Form 1 offence, he should fix a term in totality of eleven years and then allow one year discount for the plea. On my calculations, this was a discount of the order of nine percent and Mr Stanton has submitted that that was too little. He submitted that this was a plea entered at the first available opportunity.
20 The applicant entered his plea in the District Court on 15 March 2002, some ten months after Ganem had entered his guilty pleas in respect to the offences for which he was convicted. It is significant that the applicant’s plea was entered after a committal at which several witnesses, including Ganem, were called to give evidence. At that time the applicant was facing charges of conspiracy, both in relation to the supply of heroin and in relation to the supply of cocaine. The plea that was entered followed negotiations after the applicant had been committed for trial. At the same time the agreement to deal with the cocaine offence on a Form 1 was reached.
21 It is to be recognised that the applicant’s plea was entered as soon as possible after the Crown charged him with supply of heroin, and agreed to have the cocaine offence addressed on a Form 1, but it is, to my mind, unrealistic to ignore the earlier necessity that arose for the earlier committal proceedings. There is no rigid principle to be drawn from Thompson (2000) 49 NSWLR 383 as to the quantification of the discount attracted by utilitarian considerations upon a plea of guilty. Circumstances of a particular case, as well as the timing of the plea, have to be considered. Although the committal proceedings had not been avoided, there was doubtless a significant utilitarian outcome because of the applicant’s plea, and I do not consider that this was adequately allowed for in a discount of the order of nine percent. In my opinion the appropriate discount was of the order of twenty percent.
22 I return now to what I touched upon earlier as to what I regard as the error in the approach taken in determining the starting point for this sentencing exercise.
23 Rather than starting with a consideration of the approach taken by Judge Armitage in his sentencing the offender Ganem, the correct approach in my view would have been firstly to arrive at a sentence otherwise considered appropriate, giving due weight to the objective gravity of the offence and the relevant subjective features, including those features attracting a discount for utilitarian considerations. Having thus arrived at a contemplated sentence, it would then have been appropriate for the learned judge to consider the issue of parity. I do not consider that the judge was correct here to take a starting point of a head sentence of ten years with an adjustment of one year for the cocaine offence. In my opinion, giving due weight to the objective gravity of the applicant’s criminality, the starting point should have been significantly more than ten years. Not only was the applicant to be sentenced for the supply of heroin, but the Form 1 offence was also extremely serious and due consideration for this additional offence gave rise to a need to increase the sentence so as to appropriately bring into account its commission. This need was to be met by giving greater weight to personal deterrence and the community’s entitlement to extract retribution: see Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 [2002] NSWCCA 518, and in particular the judgment of the Chief Justice at para 42.
24 In my opinion an appropriate starting point before applying a discount of twenty percent was a term of fourteen years. After a discount of twenty percent, this would have resulted in a sentence of eleven years two months.
25 It is at this point of the sentencing task that the issue of parity properly fell to be considered. The criminal activity to be reflected in the sentences imposed on the offender Ganem exceeded that in the case of the applicant having regard to those features referred to earlier in paras 15 and 17.
26 Of course, the fundamental distinction to be drawn in comparing Ganem’s case with that of the applicant is that in Ganem’s case the sentencing judge gave him a fifty percent discount for assistance to the authorities. In considering what discount he ought to give for assistance to the authorities, Judge Armitage described the assistance given as “substantial” and added that it was offered not only in respect of the drug offences but also in respect of a shooting charge. Having considered the content of Ganem’s statement to the police which was before the sentencing judge, it is altogether understandable that Judge Armitage gave him such a large discount for his assistance. His Honour was satisfied that in giving that assistance the offender was placing his own life in jeopardy and that the assistance would of course impact upon the circumstances in which Ganem would have to serve his sentence. However that substantial discount for assistance was reflected in the reduction of the head sentence from ten years to five years, and the reduction of the non parole period from six years to three years.
27 Whilst the assistance factor attracting the fifty percent discount present in Ganem’s case is not present in the applicant’s case, proper regard should be had in considering the parity principle to the ten year period of imprisonment and the six year non parole period first arrived at by Judge Armitage. However, avoidance of sentencing disparity for this applicant would, in my opinion, be achieved by arriving at a head sentence for him of ten years imprisonment, and, of course, this was the head sentence imposed by the sentencing judge.
28 The non parole period set for the applicant must also be considered. The judge here imposed a non parole period of seven years six months compared with the non parole period of six years first arrived at by Judge Armitage. It seems to me that a reasonable person looking at the circumstances of this case would consider the applicant would have a justifiable sense of grievance if that period of seven years six months by way of non parole period was allowed to stand.
29 In deciding in Ganem’s case that a non parole period of six years would have been appropriate but for the assistance factor, Judge Armitage took into account
(a) the offender’s comparative youthfulness;
(b) his prior good character;
(c) the fact that this would be his first prison sentence;
(e) that upon release Ganem will have to assume a new identity.(d) a favourable assessment of Ganem’s prospects of rehabilitation;
30 Those features (b), (c) and (d) in Ganem’s case are also present in the applicant’s case. Points of distinction are that the applicant is some ten years older than Ganem and there is absent in the applicant’s case any necessity to assume a new identity when he is released. These differences in my mind warrant a somewhat different approach in considering an appropriate non parole period.
31 In my opinion, having due regard to the need for consistency, I conclude that an appropriate non parole period for this applicant is six years six months.
32 Error has been established in this matter and I propose that leave to appeal be granted and that the appeal be allowed. I would quash the sentence imposed and in lieu thereof sentence the applicant to a term of imprisonment for ten years to commence on 3 August 2000 and to expire on 2 August 2010, but would specify a non parole period of six years six months to commence on 3 August 2000 and to expire on 2 February 2007.
33 SMART AJ: I agree with Studdert J.
Last Modified: 04/03/2003
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