R v Paredes, R v Barillaro, R v Donevski
[2011] NSWDC 48
•18 March 2011
District Court
New South Wales
Medium Neutral Citation: R v PAREDES, R v BARILLARO, R v DONEVSKI [2011] NSWDC 48 Decision date: 18 March 2011 Before: JUDGE FREEMAN Decision: See paragraphs 139 to 141
Catchwords: CRIMINAL LAW - Sentence - Supply Pohibited Drug Category: Sentence Parties: Regina
Jaime Felipe PAREDES
Jose Luis BARILLARO
Mome DONEVSKIFile Number(s): 2009/2620 PAREDES 2009/2909 BARILLARO 2009/3857 DONEVSKI
Remarks on Sentence
On 2 November 2009 the offenders Jose Luis Barillaro and Jaime Felipe Paredes pleaded guilty to charges of knowingly taking part in the supply of methylamphetamine in a quantity, approximately but less than, one kilogram.
On 3 November 2009 the offender Mome DONEVSKI pleaded guilty to a charge of supply of the same drug in the same quantity.
The trial of these three had been fixed for hearing to commence on 2 November 2009.
The quantities prescribed for the prohibited drug methylamphetamine are that more than 250 grams is a commercial quantity, whilst a large commercial quantity is in excess of one kilogram.
The penalty for supply of a commercial quantity is 20 years imprisonment without or without a financial penalty. Whilst the weight of the drug is not determinative of the seriousness of the offence, it is certainly a factor to be considered. This is a serious example of the offence of supplying a commercial quantity.
In a very brief overview of the Crown case, it may be said that the supply consisted of the provision, on 12 March 2008, of a sample supply of one half ounce of methylamphetamine to an undercover officer and the undertaking to provide, on a subsequent date, a kilogram of methylamphetamine.
The Crown case relies on statements by an undercover officer, code named "Alex", the evidence of Detective Senior Constable Roodenrys, one of the officers in charge of Strike Force Coast Watch and transcripts of various conversations in person or by telephone which were recorded pursuant to warrants obtained on behalf of the Strike Force.
The representations made in the telephone conversations are admitted because it is reasonably open to me to find, and I do find, that the representations were made in furtherance of a common purpose amongst these three offenders (and others) with the common purpose being the supply with which they are charged.
The personal contacts were mainly between the undercover officer and the prisoner Donevski. The first of these encounters was at a restaurant in Brighton-le-Sands where they were introduced by Mr X, and Donevski supplied a half ounce of methylamphetamine.
A number of submissions have been made about the role played by Mr X. He may or may not be a Police informer. He may or may not be a man who has received some benefit in other proceedings. It seems probable that he was the source of the information which led to the setting up of the Strike Force. He is to be heard in some telephone intercepts checking the availability of the drug to be provided to the undercover officer and to be encouraging Donevski to effect that supply. He is said by Donevski to have been more forceful in this encouragement during meetings between these two which, understandably, were not recorded. I shall deal more with this assertion at a later time.
Between the supply of the sample half ounce, for which the undercover officer handed over $4,000 on 12 March 2008 and the projected supply of approximately one kilogram on 27 March 2008, a number of phone calls were intercepted and recorded. The meaning of these calls is the subject of dispute.
On 27 March 2008, following protracted negotiations which resulted in the scheduled supply being delayed and the proposed location of the supply being changed a number of times, no actual handover of either drugs or money took place.
Arrested at the scene were Donevski and Gustavo Araya. Paredes was arrested later that night and Barillaro was arrested on 3 April 2008. He was released to bail on 28 October 2008. The others have been in custody since their arrest.
The Crown contends that these three were intimately involved in arranging, or attempting to arrange, the supply.
Donevski's physical participation as the contact with the undercover officer is clear, but he claims that this was under duress and represented an imposition on him by Mr X. Barillaro's role is described by his counsel, Mr Gelbert, as being the vital one of bringing together people who were seeking the drug and people who were able to provide it.
I have not heard evidence from Barillaro, but there is hearsay material to the effect that he, as a favour, established a contact with his personal cannabis supplier. This favour was said to be on behalf of a "mate" who had previously failed to complete a drug deal and who was being threatened with violence if he could not supply the promised amount.
The identity of this "mate" is not revealed but it is clear that Barillaro was involved prior to the supply of the sample on 12 March 2008. His role may have been, and I find was, more complex than that second hand version, because it is clear that these offenders engaged in a search for various suppliers in the course of their "shopping around" for a deal most favourable to their interests after Donevski had agreed with the undercover officer on a sale price of $210,00 for the one kilogram.
Attempts were made to purchase that quantity as cheaply as possible so as to maximize the profit from the deal. Just how many suppliers were approached is not clear. There are references to a man called Igor, two different Chinese contacts and possibly others.
As to Barillaro being the provider of at least the sample, I refer to the telephone conversation between him and Donevski on 11 March 2008 at 11.25.01. Donevski was seeking, pursuant to a conversation shortly before with Mr X, to verify that all was in readiness for the supply of the sample next day. Barillaro informed him that he had "set it up for tomorrow".
It is probably sufficient to accept Mr Gelbert's description of his client's role as "a classic middle man" whose function was to bring together both provider and purchaser. As such it was a truly vital role. I reject, however, the proposition that his involvement was limited to one introduction necessitated at a late stage by his desire to help his threatened friend. He was involved at many points in a continuing fashion in the period after the supply of the sample. I shall deal with the subjective case made on behalf of Barillaro later.
Donevski
As to Donveski, he testified that he had, in fact, been manipulated and later threatened into taking part in this crime.
To understand this, it is necessary to sketch some of the background of Donevski's acquaintance with Mr X. They were introduced some fifteen years ago by the co-offender, Paredes. Thereafter, they had an association in which, from time to time, Donevski lent money to Mr X. Proof of those transactions is in the exhibits, including loan agreements between the two. Apparently these loans were always repaid, although not necessarily in a completely timely fashion.
In 2007, whilst Donevski was overseas, his son Alexander Svetski, lost many thousands of dollars in his share dealings. Mr X arranged certain loans for him, charging a commission and finally borrowed for himself a sum of $10,000 from Svetski. Despite the fact that he had undertaken to repay this money by Christmas 2007, in early 2008 the loan remained outstanding. Donevksi tried to recover this sum from Mr X.
Donevski said he needed the money urgently in order to visit his ailing mother in Macedonia and also his second wife whom he had married in the Philippines in 2007 and who was then working in Hong Kong. At the same time, Donevski was involved in a liaison with a girlfriend named Brenda.
Desperate, he said, to recover the $10,000, Donevski approached Mr X who, he said, offered to provide him with ten grams of methylamphetamine, the sale of which would pay off the debt. This offer was said to have been made to him on 2 March 2008. Donevski refused. A few days later, Mr X contacted him and said he would repay the money. However, only the sum of $3,000 was handed over.
Later still, Donveski, in what he describes as the biggest mistake of his life, agreed to become involved in the sale of drugs. There is no evidence that he had been subjected to any continuing pressure by Mr X, either before or after the part-repayment of the loan. The only impetus for his actions, it would seem, was his desire to at least recover his money.
Apparently, on Donevski's version, the agreement was to provide the one half ounce of methylamphetamine to the undercover police officer on 12 March 2008.
At this point the evidence becomes very difficult to follow. For example, in the telephone intercept on 28 February 2008 at 07.28.22 in a call initiated by Donevski to Mr X, it was Donevski who was trying to sell a property which, he says, "Is gone to one ah eight, well obviously I knew it's gonna go to el ... one eighty-five". Clearly it was not his own property which he was anxious to sell so he was putting himself in the picture as a salesman of a property which one might infer fortuitously carried a price equivalent to that of one kilogram of methylamphetamine.
There is nothing in that conversation which indicates that Donevski felt himself at all threatened or under pressure from Mr X. It is a conversation between friends, one of whom (Donevski) is asking a favour of the other, Mr X.
A further complication arises from Donevski's description in evidence of the manner in which he became possessed of the sample half ounce of methylamphetamine.
According to him, he was quite unable to source this sample and when he explained this to Mr X, he was directed to Mr X's right hand man "Barney", who arranged for Donevski to attend an hotel in the city where he was given the half ounce by a Chinese man who did not require any payment.
The improbability of this Chinese man handing over $4,000 worth of drugs to a complete stranger for nothing is noted.
In any event, this narrative is difficult to square with a number of telephone calls recorded from 9 March 2008 onwards. On that day, at 10.50.24 Mr X asked the price "for the half" and Donevski told him. At 10.54.16 Donevski guaranteed Mr X that he had half an ounce for Wednesday. There follows a call from Donevski to Paredes in which the former told the latter, "They expect me for him to be one hundred percent on the Wednesday." That call was recorded at 18.20.32. At 20.06.08 Paredes asserted that he "has some cakes on" which may, or may not be, a coded reference to the drug. On 11 March 2008 at 10.23.45 Donevski assured Mr X that, "It's all done. Everything is OK for tomorrow." In that conversation, the time for the meeting on the morrow is set for 1.oo pm and he is told by Mr X that the buyer "will bring the money".
At 11.25.01 Donevski rang Barillaro to report that Mr X and the buyer were meeting that day to finalise arrangements for 12 March. Donevski asked Barillaro whether he could see him that day, that is 11 March, but Barillaro said no. Barillaro said, "He told me Wednesday so I teed it up for Wednesday." Incidentally, in the background to that conversation between Donevski and Barillaro, Paredes is heard to enquire whether "it is for Wednesday".
Immediately afterwards, at 11.31.50, Donevski then reported to Mr X by saying, "I've just spoken to this guy and I asked him to give this to me now but he said 'No'. He says, 'You told me for Wednesday, so'." Clearly this is a reference to his conversation moments before with Barillaro, so that the two conversations are seen to refer to the provision of the sample half ounce.
Donevski says in that conversation, "You need to tell me exactly at what time so I can (ind) the other one ... to get that."
Mr X suggested that if "that guy" was concerned about the money, he should accompany Donevski but Donevski says, "He can't do it. He's doing concreting." This is a reference to Barillaro whose work for the last few decades has been as a concreter.
Nor is Donevski's story consistent with the overture he made to Mr X on 3 March 2008 at 18.36.20. In that conversation he is enquiring whether Mr X needs "ice and powder" for which he quoted a price of "195" for one kilo, which is accepted as being shorthand for $195,000. What's more, he is, in that conversation, anxious for an answer, asking Mr X to call him back.
Donevski's attempt to explain this call [Transcript 2 December 2010 page 48] is incomprehensible. From reluctantly agreeing to some supply to recover his money from Mr X, he has, he said, moved to a position where he is offering a considerable quantity of drugs just for the purpose of meeting a man named Costa. He wants to meet Costa in the hope that he, Costa, will pay him the money Mr X owes him (or owes his son) without any drugs being delivered. He alighted, he said, on what is accepted as the prevailing price for a kilo of methylamphetamine because of some recollection of an earlier conversation with Paredes about the price of an ounce of marijuana.
He was unable to explain why, if his interest was in meeting Costa, he was offering drugs to Mr X.
In cross-examination about a conversation recorded on 27 February 2008 at 17.54.53 Donevski veers from saying that it related to him selling marijuana (with Paredes being involved in setting the price) to him being sold marijuana by some Chilean gentleman.
He agreed that when he rang Paredes shortly after the supply on 12 March 2008 that he used the phrase, "It's a beautiful day", and in doing so he was not giving a weather report but merely telling Paredes that the deal had been done.
Final details of the meeting at the restaurant at Brighton-le-Sands were conveyed by Mr X to Donevski in a call at 13.41.52 on 11 March 2008. Nowhere in the recorded conversations is there any indication that Donevski was unable to obtain the required half ounce of methylamphetamine. He made repeated assurances to Mr X that he, Donevski, was able to effect the supply.
In evidence he said that he had rushed straight from meeting the Chinese gentleman in a city hotel to the meeting at Brighton-le-Sands. On 12 March 2008 at telephone conversations recorded at 12.32.42, 13.07.26, 13.10.40 and 13.20.52 he was relaying to Mr X his progress in driving to the meeting coming from Blacktown.
Now a certain amount of secretiveness and indeed, deception, is to be expected between people involved in the drug trade. However, this reaches ridiculous levels in this instance.
If Donevski's story is to be accepted, then Mr X, through his right hand man, Mr Barney, had arranged for the Chinese man to provide the sample in the city hotel that morning. What would be the purpose in Donevski telling Mr X, who presumably knew the truth, that he was driving, not from the city, but from Blacktown and giving progress reports along the way?
It is very difficult to read his assurances that he had the sample as being statements made by a man who was in fact finding it impossible to obtain that sample. His behaviour on the day, as recorded in those telephone intercepts, is totally inconsistent with the story that he was in the city receiving a free sample from a stranger. The inference that I draw is that the story about the Chinese gentleman is simply not credible.
Mr Siva for Donevski, submits that his client was entrapped by Mr X as a means of securing an advantage to himself in relation to his own criminal activities which were then under investigation. It may well be, and I accept probably was, on Mr X's mind that he stood to gain an advantage by cooperating with Police. That does not mean that he deliberately set a trap for Donevski and his co-offenders. It is equally consistent with him simply taking advantage of an opportunity. It is submitted that Donevski was especially vulnerable because of his cognitive difficulties and because of the parlous financial circumstances in which he found himself, as detailed earlier.
As to his cognitive difficulties, I accept, of course, the opinion of Professor Woods and indeed that of Dr Sokolovic, the psychiatrist who first treated Donevski in December 2003, although Dr Sokolovic's observation that Donevski has never mastered the English language sufficiently was not borne out by my observation of the way in which he gave evidence.
Nonetheless, those medical opinions establish that Mr Donevski was diagnosed in 2003 with maladjustment syndrome compounded by depression, psycho-social dysfunction and anxiety. Professor Woods, who conducted three examinations of Donevski in late 2009, identified significant impairment of cognitive functioning and diagnosed major depressive disorder, the symptoms of which appeared to him to be more severe than would normally be expected of a person in Donevski's position, that is, in prison and facing a potentially lengthy sentence.
Donevski's ability to process information and his memory function are significantly impaired. These appear to be factors in what Dr Sokolovic described as "his lost ability to engage in associative thinking, impairing his executive functioning".
Both Dr Sokolovic specifically, and Professor Woods inferentially, appear to accept the factual conclusion that Donevski was coerced and threatened. With respect, that is not a conclusion of fact which binds this Court.
Likewise, both practitioners appear to place some reliance on the inconclusive findings of a CT brain scan conducted in January 2009. That result is reported in part as follows:-
There is apparent hypo density in the pons image 6 measuring up to 4.5mm. It is difficult to determine whether this is a genuine lesion or an artefact.
An MRI was recommended to resolve this question. Both doctors recorded the MRI was conducted apparently in November 2009. Neither, however, has seen the results.
The results of that MRI were not introduced in evidence. One would expect that if those results showed some organic damage to the prisoner, this fact would have been established.
The exchanges between Donevski and Mr X include some urging by both parties of the other. I accept Mr Siva's submission that there was a gross disparity between the knowledge possessed by the two, thus giving Mr X (and the undercover officer) the advantage over Donevski. However, Donevski was alive to the risks inherent in what he was doing, aware of the possibility that he was being led into a trap.
I refer to his close questioning of Mr X in the conversation of 11 March 2008 recorded at 22.31.55. When Mr X attempts to discover the identity of the supplier on whom Donevski relies, Donevski replies, "You know what these people are like. I told him there'll be a big one after this. We'll go big. Understand? If this one is alright..."
He was thus projecting the sale of a greater quantity provided the sample was acceptable, and subject to questions about whether the people with whom he was dealing were to be relied upon, and so on. In other words, he is not so nave or unworldly as to be led into committing a crime he would not otherwise have committed. He was keen to get money.
He is not himself a drug taker and claims never to have been involved in illicit substances on any other occasion. This rings a little false when he attempts to explain some of the coded telephone conversations as relating to the sale and purchase of marijuana. Of that it will be necessary to say more when dealing with the case made for Paredes.
There is tension, too, between the accounts given by Donevski and Paredes concerning the alleged threat by Mr X at Redfern on 13 March 2008.
Donevski said that on the day after the supply of the sample he went to see Mr X at Redfern while Paredes waited in the car outside. Mr X produced a gun and pointed it over a desk lamp telling Donevski that, "This is what's going to happen to you and your family and you're jeopardising Jimmy's family also if you are to let down these people which are my friends."
Donevski said he was shocked, shaking like a leaf and, on returning to the car, he told Paredes, "Mr X threatened me with a gun". He testified that he told Paredes Mr X had threatened him as well. According to Donevski, Paredes asked whether Mr X had mentioned his (Paredes') address. They drove off and almost nothing further was said.
Paredes claims to have not heard about the drug dealing at all, or this threat, until the afternoon of 26 March 2008. Paredes claims that he was at a meeting in Parramatta at which Araya and a man called Dave were also present when Donevski told him for the first time of his need for one kilogram of speed for supply the following day. It was only at that meeting that he revealed the history of having supplied half an ounce on 12 March 2008 and having been threatened with a gun by Mr X. The threat was extended to Paredes who claimed that, according to Donevski, "the bikies", that is the undercover officer, had followed Paredes and knew where he and his family, specifically his children, lived.
To the obvious question, why would he, Paredes, be under threat for something in which he had no involvement, he had, effectively, no answer.
This really raises the question of whether, on the balance of probabilities, I am persuaded that the threat was made by Mr X or not. If it was made then it is unthinkable that Donevski would not have told Paredes immediately afterwards. He says he did and in detail, including the name of the author of the threat, that is, Mr X. To agree that he had not told Paredes at the time would seriously weaken Donevski's claim to have been threatened, which is an important thread in the case he seeks to make.
Despite the fact that Paredes was said to be "drunk, tipsy", it is impossible to believe that such a threat to himself and his family would not have registered at all.
Both of these offenders are, understandably, keen to promote their own cases but also to not damage the case being made on behalf of their co-offender. Thus Paredes is prepared to support the making of the threat, or at least being told of it, but only on the basis that he did not receive this information until 26 March 2008.
Paredes is also keen to explain some of the coded references in the intercepted phone calls as being references to marijuana rather than amphetamine and in this endeavour he received some support from Donevski. This support is, however, for reasons to which I will come, limp and unimpressive.
What, on the other hand, if no such threat was made? I assess Paredes as being a man who would have no difficulty in supporting Donevski's claim but only on the basis that he was unaware of that threat until the afternoon of 26 March 2008.
A criminal history, said to be that of Mr X, is Exhibit 5. There are no incidents of violence on that record. It is clear that Mr X has a long history of dishonesty by way of larceny and fraud. There is nothing to suggest that he was involved with firearms or other forms of violent crime. For him to produce a handgun would, on the face of what is shown about him in that record, be uncharacteristic.
Of course, it might be argued that his involvement with drugs was similarly uncharacteristic but dishonesty and drug use and/or supply commonly go hand in hand. Violence is not in the same realm.
The evidence of the threat comes only from Donevski, with the heavily qualified and, indeed, contradictory support of Paredes.
I have borne in mind the medical opinions to which I referred earlier. Even applying a very considerable element of caution in consequence, I did not find Donevski to be a witness on whose account I could rely. The telephone intercepts do not support the claim that he felt under direct threat.
I acknowledge that Paredes, at least, said, "They're going to kill me, mate", to Araya on 26 March 2008 at 18.14.37, but whether this is hyperbole and to whom it refers, in any event, is unknown. This is after Paredes had apparently intervened by telephoning the man called Igor, which had the effect of increasing the purchase price of the drugs. He could just as easily have been referring to his cohorts as "they".
Nowhere in his recorded conversations does Doneveski mention a threat. The tone of his conversations, as far as one can tell from the transcript, does not alter between the times prior to this alleged threat on 13 March and afterwards.
The onus of proving the basis on which he was involved in this enterprise in order to cast his role in the least culpable light is on Donevski. I am not satisfied on the balance of probabilities that the alleged threat was made.
It is Donevski's own case that his original involvement was for financial gain. I find that to have been his motivation also in continuing to be involved in sourcing and supplying, or attempting to supply, the kilogram which was due to be delivered on 27 March 2008.
In saying that, I have not overlooked his compromised capacity for executive thinking. His involvement in this enterprise was, because of its illegality, ill-advised. He may not have fully appreciated how ill-advised it was. For that reason I do not regard him as being an ideal vehicle for the exhibition for the full weight of general deterrence. That factor is lessened in his case but is not entirely to be ignored.
Paredes
Paredes accepts by his plea that he was a participant in the supply but his evidence is directed to establishing that such participation came very late, was peripheral and ineffective and was brought about only because of fears he felt for the safety of his friend Donevski and, indeed, for his own and his family's well being. He said that he was not to gain any monetary benefit for himself.
The evidentiary burden of establishing these propositions, on the balance of probability, rests on the offender.
In giving evidence, Paredes asserted that he knew nothing about the supply with which he is charged until after mid day on 26 March 2008, that is the day before the delivery of one kilogram of methylamphetamine was scheduled to take place. Specifically, he denied any knowledge of the actual supply of a half ounce of methylamphetamine as a sample which had taken place on 12 March 2008.
I do not accept that he was unaware of the supply on 12 March 2008. His evidence is that he was at that time engaged in a scheme involving the fraudulent use of credit cards and also in buying and selling marijuana. Thus, he said, the telephone conversations on which the Crown relies refer to those activities and not to his involvement in this supply. That he was in fact involved in fraud and that certain television sets were obtained from Melbourne, is, I think, tolerably clear. His involvement with marijuana, other than as a user, is less certain.
Some of the conversations refer to more than one subject, as is testified by Detective Roodenrys [Transcript 28 July 2010 page 35 line 30] and on the face of it, by reference to the words within that conversation, "What about the other issue?" I accept that in that conversation the "other issue" is the television sets from Melbourne. That is a conversation of 9 March 2008 between Donevski and Paredes recorded at 18.20.32.
Similarly "the other issue" is a phrase used in the conversation of 27 February 2008 at 17.54.43 between Paredes and Donevski. Paredes says this conversation relates to marijuana because of the use of the term "little green". I do not accept that interpretation. Here I propose to set out the entire telephone conversation:-
MD Hello.
JFP Yeah, brother, how are ya?
MD Okay. I just talked to Joe.
JFP Yeah.
MD And um he says no, know nothing about it.
JFP Oh okay. I gotta, I'll, I'll, I'll tell him to call you. But listen, Gus just told me about that other issue, 'member? Um when I say, I said about that old man across the road?
MD Yeah yeah yeah year yeah that's right yeah.
JFP Little green. Yeah yeah.
MD Yeah ah yeah
JFP Well ...
MD Go on.
JFP Eh not him.
MD Yeah.
JFP But I can, I can get a um a full no, no deposit no nothing for finance.
MD Okay.
JFP Um yeah for the big property.
MD Okay okay okay.
JFP Yeah. Now ya only need to put a one, one eight-five deposit (ind)... eight five.
MD Si si.
JFP Yeah.
MD I see, I see yeah.
JFP So we can do it for (ind).
MD Yeah we, we'll get an answer by tomorrow or I was talking today and I'll get an answer by tomorrow, I'll try.
JFP Alright.
MD So it's okay.
JFP So for how much you sell it for, the property, one ninety-five or?
MD One eight... one eighty-five.
JFP Up (ind) How are we gonna make money?
MD Uh... yeah alright alright we'll knock on wood mate.
JFP One ninety-five?
MD Yeah alright open... one eight five I say or is it one nine...
JFP No.
MD ...one nine five, is it?
JFP We get it for the property one eighty-five.
MD Okay okay okay okay.
JFP You gotta say one ninety-five.
MD That's the idea okay okay.
JFP Alright.
MD Yep sure.
JFP Right okay?
MD Okay. Listen.
JFP Okay. What?
MD I'm on on on on the way home now you know um...
JFP Yeah that's alright.
MD So ah I'll give you a call tonight.
JFP We need for tomorrow yeah.
MD Well I'll give you call tonight.
JFP Alright.
MD After nine o'clock.
JFP Alright bro.
MD Okay bye.
JFP Bye
END OF CALL
A number of interpretations are possible. "That old man across the road" ... "little green", may be a description of the man or a reference to him being a marijuana supplier or indeed to marijuana itself. By saying "not him", Paredes makes clear that that man is not to be the supplier or that the topic under discussion is not, in fact, marijuana.
His references throughout to obtaining the "big property" for 185 and selling it for 195 are quite capable of bearing the meaning that he is describing the purchase and sale of a kilogram of methylamphetamine for those figures are reflective of the then market price.
His answers in cross-examination were unconvincing. He described a scheme whereby he would get a pound of marijuana and each time he sold an ounce for $185 he would provide that sum to his supplier. The fact that these figures approximate those referable to the supply of a kilogram of methylamphetamine is, he says, sheer coincidence. I am unpersuaded by this argument.
The fact is that he makes clear that this conversation is not about marijuana and it is not, in any event, Paredes who will be following the scheme as outlined above. It was Donevski who would be making the sale and Paredes' contribution was in suggesting the price for which Donevski should ask. Donevski denies that he was involved in the sale of any marijuana.
The conversation which follows at 18.59.07 is very probably on the subject of the credit cards and their fraudulent use.
The figure of 185 is referred to again by Donevski in his conversation on 28 February 2008 at 07.28.32 when he tells Mr X that "the property" is costing 185. This is the conversation in which Donevski is looking for a buyer and is told that the buyers wanted a "photo example to look at it properly before they fly over". This, I infer, is a reference to the sample of the half ounce which was provided on 12 March 2008 as a prelude to the projected supply of one kilogram of methylamphetamine.
Paredes says that "paperwork" is a code word for credit cards. That is clearly not so, or at least not always so, because in the conversation of 10 March 2008 at 15.32.18 he makes clear to Donevski that "paperwork" means "cash".
As already mentioned, the objective for Wednesday 12 March 2008 was the supply of the sample half ounce. That is clear in the conversation between Donevski and Barillaro on 11 March 2008 at 11.25.01. Although Paredes claims not to have been present during the first part of that conversation he was certainly present when Barillaro said, "He told me Wednesday so I teed it up for Wednesday". Paredes interjects, "Is it for Wednesday?" and is assured that "it is". Paredes submits that this conversation, insofar as it can be understood, relates to the television sets and there is no basis for concluding that he was privy to the supply.
The conversation clearly involves more than one subject and the critical factor is that Barillaro says that, "I teed it up for Wednesday". There is no evidence that Barillaro had anything to do with organising the television sets. He was, it is said, to be the recipient of one set but "it" which he had "teed up" for Wednesday can realistically only refer to the sample for which he was the source.
On the day of the supply, 12 March 2008 and very soon afterwards, Donevski reported to Paredes that the deal had been done by using the phrase, "It's a beautiful day". Paredes then asked Donevski to come and see him in Parramatta. Donevski, who had the $4,000 obtained for the half ounce, agreed to meet Paredes at Parramatta at 5.30pm, apparently to help him with his financial difficulties. Donevski said that he gave Paredes $2,000 on this occasion. Barillaro also was anxious to ascertain when he would "get the dollars" [telephone intercept 12 March 2008 at 14.55.12] and he is told, "5.30 to 6". Araya, at 16.50.16 also enquires whether Donevski has "the coin" with him. This in terms refers to money. Araya also is anxious to see the "paperwork" or cash which is arranged for a time after Donevski has seen Paredes [telephone intercept 12 March 2008, 16.50.16].
I accept that the conversation in which the phrase "It's a beautiful day", used by Donevski to Paredes is a conversation in which there is a second subject. I accept that this is the non-arrival of the television sets from Melbourne. However, notwithstanding the disappointment arising from the non-arrival of the television sets, Paredes congratulated Donevski, saying, "Well done, well done". To what could these congratulations relate if not to the successful supply of the sample?
Donevski also told Paredes in that conversation that, "They prefer Gus' side", which I take to be a reference to the fact that the undercover officer had indicated he would purchase a full kilo rather than a half kilo which had been an option.
That the television sets are a separate issue is confirmed in the three-way conversation between Araya, Donevski and Paredes on 12 March 2008 at 17.32.21. In that conversation Araya says, "No, and my telly? Do you still gonna get the telly?" to which Paredes replies, "Yes, I still ha(s) to go and get it. This is why we came to get it and we'll go there." The cause of Paredes' euphoric state as revealed in that conversation is clearly not the television sets, but is much more likely to be the successful supply of the sample.
In the telephone conversation between Barillaro and Donevski on 13 March at 10.33.13 Barillaro says, "I rang up Jaime this morning and I told him that these people want to know before 11 o'clock if you want it or not because there's somebody else that wants it and they'll give it to them". This is confirmed as a reference to "the big one".
I infer that this conversation is about the suppliers having an alternative buyer for "the big one", that is the kilogram of methylamphetamine and that Paredes has to contact those suppliers with either reassurances or explanations.
Later, on 15 March 2008 Mr X told Donevski that "his mate from Adelaide", that is the undercover officer, would be coming on 27 March 2008 seeking a "whole cake" for which the price was to be $21. In other words he was willing to pay $210,000 for one kilogram of methylamphetamine.
Within two minutes of that call Donevski telephoned Paredes to tell him that "the fella from Adelaide will be coming on 27 th for the ... 'chocolate cake' ... 'the biggest'". Paredes attempts to translate this into a reference either to an actual comestible or to a pound of marijuana, are simply unbelievable.
Paredes is not a witness I was prepared to accept. I do accept that Paredes was in financial difficulties, for example, attempting to sell his laptop computer although he thought that, "we should be fine if it all goes well on the 26 th ", a date which he later accepts as being the 27 th , that is the projected date for the supply. [Telephone intercept 20 March 2008 at 15.16.44] which is a call from Donevski to Paredes.
Donevski again confirms for Paredes the "birthday party", that is, the supply, is fixed for 27 March 2008 in telephone intercept 25 March 2008 16.56.05.
Paredes did make, even on his own case, an ill-judged intervention with Igor, which had the effect of driving up the purchase price of the drug. On 26 March 2008 after this development had become clear, Paredes reassured the undercover officer that whilst there were difficulties which he described as "more political and an issue with the party's prices", yet, "it is available so I'm just trying to work out something with these people now" [listening device 26 March 2008 at 18.30]. He says it is like a family disagreement but it will all work out in the end.
That conversation is not something one would expect to emanate from a man who, just hours before, had learned of a threat to his life and was intervening, with great reluctance, to safeguard himself and his friend Donevski.
The conclusion I have reached is that Paredes was intimately involved in the supply from a time before the provision of the sample.
Penalty
As mentioned before, there is prescribed a standard non parole period of ten years for an offence in the middle of the range of objective seriousness of crimes such as this. Whilst, in accordance with Way's case, the entry of a plea of guilty means that the standard non parole period is not automatically applied, that standard remains as a guidepost for the calculation of an appropriate sentence.
It is not appropriate to work up or down from that standard non parole period but it remains necessary to bear that figure in mind after analysing where, on the scale of criminality, this offence is to be found.
The Crown argues that this was a supply at "the topmost end of the range of quantity". That is so.
The involvement of each of these offenders is not entirely clear, nor is the relationship between any of them and the group as a whole. It does appear that Donevski, although the contact man, had to defer to the others in terms of setting the price. Paredes had something to say on this subject but it does appear from conversations between the others, for example, Barillaro and Araya, that Paredes was regarded as a lightweight contributor. His contact with Igor turned out to be counter productive and necessitated some additional payment to Araya.
As I said, it is difficult to work out the mechanics of their dealings with one another. Nonetheless, this supply was being organised over a period of about four weeks and it involved a variety of activities, including attempting to contact suppliers, pricing, checking and so on.
In those circumstances it is difficult to ascribe any position of seniority or authority to any of them. Donevski's far greater physical involvement is offset by his apparent lack of authority. In terms of the mens rea of each, there does not appear to be any real reason to distinguish them. Donevski had full capacity to understand the wrongfulness of his action, although his ability to appreciate that wrongfulness may have been somewhat compromised.
Paredes, I accept, was a drug taker, but whilst this may provide some explanation for his involvement it does not signify that he was unable to appreciate the role he was playing. In other words, his drug and alcohol consumption does not provide him with any excuse.
Having considered the actus reus, the consequences of their conduct and the mens rea of each offender, I would classify this offence as slightly below the mid point of the mid range of objective seriousness. In so doing I am mindful, of course, of the fact that apart from the sample half ounce there was no other quantity of drug actually provided.
In this regard, there is no basis for separating out these three offenders, although that will be necessary when considering the sentence which is appropriate to each.
I turn now to consider the subjective cases made on behalf of each prisoner.
Barillaro:
Jose Barillaro is now aged 45. The only relevant entry on his criminal antecedents is the possession of a prohibited drug and utensils in 1993. The 2009 conviction for possession relates to a quantity of cannabis found when a search warrant was executed following his arrest for this matter. It is irrelevant.
As to his mental health, it is reported that he was diagnosed by his general practitioner with depression in 2000-2001. His doctor referred him to a psychiatrist whom he consulted for about twelve months. He was also taking Valium as well as other anxiolytic and analgesic medication for about twelve months. He was suffering from the continuing effects of a car accident in 1997. He was also apparently self medicating with cannabis.
Recently, his symptoms have resumed since his arrest on this matter and, no doubt, consequent upon that arrest. He is extremely regretful about the effects on his family of this offence and understandably so. He is the sole bread winner for his wife and six children, being five from his present wife and one from an earlier relationship. He lives in an ordinary suburban home with no overt signs of wealth. That house is subject to a mortgage and will almost certainly be repossessed upon his return to custody. His wife has undergone two lumpectomies, one in July 2009 which identified a fibroadenoma and the second involved her other breast in November 2010. There is no evidence that that tissue, when removed, was demonstrated to be cancerous. The effects on Barillaro's wife and children will be severe, but they do not seem to me to reach the extraordinary level which would justify interference with an otherwise appropriate sentence.
The referees speak of Barillaro's long and admirable work history as a concreter and his involvement in his children's sporting activities. His referees believe that the offence is uncharacteristic and all speak of his intense remorse and regret. I expect that prison will impact harshly upon him because of his regret as to the effects upon his family.
I also note that he will be returning to custody after a lengthy period on bail. It is a subjective judgment but, as far as I am concerned, returning to custody after a lengthy period on bail will probably be more exquisitely felt than had he not had a period of liberty.
Unfortunately, the crime he has committed is a very serious one which requires the imposition of a very substantial term of imprisonment. Even declining, as I do, to impose the standard non parole period, it is clear that he faces a lengthy period of imprisonment. He has had the advantage of being on bail since 28 October 2008 so that he has served, to date, only seven months. I accept that a period on bail cannot be completely discounted because he was subject to daily reporting conditions but that period cannot be regarded as a complete equivalent to time in custody.
I have found special circumstances in his case in that I regard his prior character as good; this is his first time in custody; there is an undoubted impact on his family, and his own health which, according to Mr Howard, will be affected by his concern for his family. I have therefore adjusted the statutory proportions of his sentence by reducing the non parole period to the very minimum which I believe reflects the criminality involved in this matter.
Donevski:
Mome Donevski is now aged 59. There is to be taken into account on his sentence one item on a Form 1, being his possession of property recently suspected of being unlawfully obtained, namely the sum of $2,500.
His record contains a conviction for larceny in 1989 and two assaults which must have been relatively minor, the first in 1993 and the more recently in 2001. His record is not such as to disentitle him to leniency.
I have already dealt to a certain extent with his mental condition and the fact that the element of general deterrence should have less impact in the formulation of his sentence than it does for each of his two co-offenders. I note Dr Sokolovic's opinion that prison has already aggravated Mr Donevski's physical and mental health problems and will have further deleterious effects upon him. I note that he suffered a cerebro-vascular incident in mid-2009. I have no evidence of any continuing sequelae from that. He is reported as suffering from stomach ulcers. I note that Donevski has completed a basic problem solving course.
For those reasons of his health and because this is his first time in custody, I have found special circumstances and have adjusted the non parole period. I should say that the matter on the Form 1 has had only a minor effect upon the sentence.
Paredes:
Jamie Felipe Paredes is now aged 37. His criminal history contains numerous driving offences of a serious nature and the offence of obtaining money by deception. He has been subject to sentences of periodic detention in 2004 and home detention in 2005.
Paredes is the product of a broken home. His parents separated when he was aged 15 years and he elected to live with his father, but two years later his father left, ostensibly for a holiday in his native Chile, but he never returned. Paredes, accordingly, felt totally abandoned without notice and at that time was estranged from his mother because of his decision to live with his father. It is said this development is at the root of all his personality and psychological problems.
Despite this, Paredes completed the Higher School Certificate and obtained a Business Management Diploma. He has been largely self employed, showing some entrepreneurial skills but his abuse of alcohol and cannabis left him unemployed for some two years before this event. He was, accordingly, struggling to support his wife and children.
I note that in prison he has undergone grief counselling and, indeed, has utilised all of the services available to him in custody.
He is described by Ms Robilliard has having a strongly dependent personality whose strongest motivation appears to have been a willingness to go along with his friends. He has been under psychiatric treatment over a number of years. I note that I have no report from his treating psychiatrist but Ms Robilliard did have a report from Dr Girgis, his treating psychiatrist, who regarded Paredes as suffering from severe depression and, later, some paranoid ideation and hallucinations. These conditions have improved under his treatment.
I accept his contrition is well-expressed, but his attempt to minimise his involvement in this crime militates against a complete acceptance that it is genuine.
Given his capacity, his education and intelligence, I set his prospects of rehabilitation as good.
Overall, I assess the sentences for these three offenders to be roughly the same, except for an allowance for Donevski's slightly reduced capacity and, of course, a mathematical adjustment to account for the fact that Barillaro has served only seven months and has been on strict bail conditions for 2 years and 5 months.
What discount should be allowed for the pleas of guilty? The pleas came late on the day fixed for trial. A considerable amount of court time was still consumed in the unsuccessful attempt to minimise these offenders' roles.
Nonetheless, the utilitarian value of the pleas is very significant because the trial would have run for a number of weeks. Allowing for that utilitarian value and with some addition for contrition, I have applied a discount of one-sixth, that is slightly more than fifteen per cent.
For those reasons the sentences are as follows:-
Jaime Paredes: Upon your plea, you are convicted. I sentence you to a NPP of 4 years and 6 months; to date from the date of your arrest, 27 March 2008. You will be eligible for release to supervised parole from 26 September 2012. The balance of term is 3 years, which will expire on 26 September 2015.
Mome Donevski: Upon your plea, you are convicted. Taking into account the item on the Form 1, I sentence you to a NPP of 4 years; to date from the date of your arrest, 27 March 2008. You will be eligible for release to supervised parole from 26 March 2012. The balance of term is 3 years, which will expire on 26 March 2015.
Jose Barillaro: Upon your plea, you are convicted. I sentence you to a NPP of 3 years and 3 months to date from today, 18 March 2011. You will be eligible for release to supervised parole from 17 June 2014. The balance of term is 3 years, which will expire on 17 June 2017
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Decision last updated: 27 June 2011
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