R v Pirgousis - [2012] SASCFC 127

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PIRGOUSIS
[2012] SASCFC 127
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice White and The Honourable Justice Stanley)
5 December 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - OTHER MATTERS
Appeal against sentence – appellant plead guilty to attempting to traffic in a large commercial quantity of a controlled drug – appellant sentenced to four years five months and three weeks with a non-parole period of two years and nine months – appellant appeals on following grounds: (1) sentence was manifestly excessive – (2) sentence failed to adequately reflect the lesser role played by the appellant in comparison to a co-offender – (3) sentence did not adequately reflect the lesser period of time in which the appellant was involved in the enterprise – (4) sentencing Judge failed to sufficiently take into account the appellant’s progress towards rehabilitation.
Held: Appeal dismissed. (1) Offence was amongst the most serious of offences of its kind – the sentence was not so severe that it was plainly unjust or a sentence which no reasonable Judge could have imposed – (2) and (3) the appellant played a significant and important role and was involved as a principal of the enterprise – (4) evidence does not support that the appellant’s prospects for rehabilitation are strong.
Controlled Substances Act 1984 (SA) s 32; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA) Sch 1 Pt 1; Criminal Law Consolidation Act 1935 (SA) s 270A, referred to.
R v Tennant (2010) 107 SASR 504, considered.

R v PIRGOUSIS
[2012] SASCFC 127
Court of Criminal Appeal: Kourakis CJ, White and Stanley JJ

KOURAKIS CJ: The appellant appeals against the sentence imposed on his conviction for the offence of attempting to traffic in a large commercial quantity of cannabinoid between 15 and 22 September 2008 at Murray Bridge. The appellant was sentenced to a head sentence of four years five months and three weeks (to take into account a period of one week spent in custody before he was released on bail) with a non-parole period of two years and nine months. I will refer to this offence as the 2008 offence. I would dismiss the appeal for the reasons given below.
The offending
The cannabinoid, the subject of the 2008 offence, was found in a vehicle being driven to New South Wales by the appellant’s co-offenders, Clark and Tassone. Cannabis plant material weighing about eight kilograms was found in the car but it was too moist to fall within the definition of cannabinoid for the purposes of the Controlled Substances Act 1984 (SA) (the Act).[1] The appellant, by his plea, admitted that he intended to traffic in a large commercial quantity of cannabinoid which was sufficiently dry to come within the terms of the Act. The prescribed quantity for that purpose is two kilograms.[2] Even though there is no evidence directly addressing the issue, it is likely that the cannabinoid involved in this matter was significantly heavier than the prescribed amount.[3]
[1]    R v Tennant (2010) 107 SASR 504.
[2]    Controlled Substances (General) Regulations 2000 (SA) Sch 1 Pt 1 as it was at the time of the offence.
[3]    The declaration of the witness Tanya McKew described the moisture content as “slight”.
Clark and Tassone were, respectively, 24 and 22 years of age when they were sentenced in 2012 and were 19 and 18 years of age at the time of the 2008 offence. It was accepted for the purposes of their sentencing that they were couriers. Tassone was sentenced to two years nine months with a non‑parole period of 20 months and Clark to three years with a non-parole period of 20 months. Both sentences were suspended.
Pirgousis, Clark and Tassone had been recruited to participate in a commercial interstate drug trafficking enterprise by a man, Ietto. The enterprise had been hatched by Ietto several months earlier. A police investigation targeting Ietto commenced some time in 2008. The investigation included mobile telephone interceptions which commenced on 4 August 2008. It was apparent from the intercepted conversations that Clark had made about seven interstate drug trips between 4 August 2008 and 22 September 2008 when he and Tassone were apprehended at Murray Bridge. The Judge accepted that Tassone had become involved only part way through August.
Ietto, who is 48 years of age, was sentenced to five years six months with a non-parole period of three years and six months for his part in the enterprise. Ietto had no relevant prior convictions.
Pirgousis became involved in the enterprise in the latter part of August at the invitation of Ietto. Pirgousis’ role in the enterprise was both to source cannabis from growers in South Australia and to collect outstanding payments from interstate purchasers. It is likely that Pirgousis had his own contacts amongst South Australian producers and interstate distributors. Indeed on 19 September 2008 an acquaintance of Pirgousis, Oster, was found with 20 pounds of cannabis which he was about to deliver to Pirgousis. Oster was sentenced by another District Court Judge to three years with a non-parole period of 20 months. That sentence was suspended.
Even after the arrest of Tassone and Clark, Pirgousis took steps to recover a drug debt from a purchaser in New South Wales. The Judge sentenced Pirgousis on the basis that he had received between $10,000 and $12,000 for his involvement.
Pirgousis, quite independently from Ietto, had previously shown a capacity and preparedness to grow and traffic in cannabis. On 15 June 2007 he was arrested in a McDonald’s drive through for possession of 11.7 kilograms of cannabis with a street value of about $80,000. He was also arrested for taking part in the production of cannabis and interfering with an electricity meter with respect to a hydroponically grown crop. I will refer to these offences as the 2007 offences. Pirgousis was on bail for the 2007 offences when the 2008 offence was committed.
Pirgousis was not sentenced for the 2007 offences until 27 January 2011 when another Judge imposed a single sentence of three years and one month imprisonment with a non-parole period of 16 months. Pirgousis did not have a history of relevant offending before the 2007 offences.
In sentencing for the 2007 offences the Judge accepted that Pirgousis was largely a courier in the earlier transaction notwithstanding his possession of heat sealing equipment which had been used to package some of the cannabis. It was agreed for the purposes of sentencing that Pirgousis had made four other interstate trips in addition to the one which was interrupted by his arrest at a McDonald’s drive through in Frewville. The Judge also accepted that Pirgousis’ involvement with the cannabis cultivation was limited to tending to the crop from time to time for an acquaintance who had gone overseas. In sentencing on that basis, the Judge acted on the submissions of counsel; Pirgousis did not give evidence. Pirgousis is fortunate that his counsel’s submission was accepted as establishing those mitigating circumstances on the balance of probabilities. The factual basis on which the Judge sentenced may now appear improbable in the light of Pirgousis’ involvement with Ietto in the 2008 offence. It is not clear whether the Judge who sentenced for the 2007 offences knew that the 2008 offences were still pending.
Personal circumstances
During Pirgousis’ youth, his parents operated take-away food businesses. Pirgousis and his siblings were educated at private schools. He trained and worked as a fitter and turner for a number of years after leaving school. At the age of 23 he formed a de facto relationship and financially supported not only his partner but her two children from a previous relationship. Pirgousis stopped working as a fitter and turner and joined the family take-away business to meet those financial demands. The relationship with his de facto partner ended after his arrest. Pirgousis has worked hard in the family take-away food business with his twin brother since his release. Pirgousis is now aged 36.
Pirgousis was released on home detention, before the expiry of the non‑parole period fixed for the 2007 offences, on 27 September 2011 and has not offended since his release. He complied with the conditions of his home detention release and later with his parole conditions.
Grounds of appeal
The appellant first complains that the sentence was manifestly excessive. The maximum penalty for his offence of attempt is 12 years’ imprisonment because the maximum penalty for trafficking in a large commercial quantity of cannabinoid is life imprisonment.[4] The joint enterprise in which Ietto and Pirgousis were engaged was substantial and sophisticated. It involved coordinating sufficient purchases from local suppliers to meet interstate demand. At least four, and probably more, men were involved in the enterprise. Substantial sums of money must have been involved for the purchases from local growers. Even more money must have been collected from the interstate purchasers. The offence of which the appellant has been convicted was not an isolated one but was preceded by a series of similar transactions. The appellant was therefore not entitled to the leniency which might be extended to an offender who has committed an isolated offence. Indeed, only the intervention of the police brought the interstate trade to an end. Even then Pirgousis continued to collect an outstanding debt. The commission of the 2008 offence whilst on bail for the 2007 offences is yet another aggravating factor. The 2008 offence was amongst the most serious of offences of its kind.
[4] Controlled Substances Act 1984 (SA) s 32; Criminal Law Consolidation Act 1935 (SA) s 270A.
The 2008 offence was punishable as an attempt because of the happenstance that, despite the appellant’s intention, the cannabinoid was not yet sufficiently dry to fall within the statutory definition. In all other respects, and in particular from the perspective of the conduct engaged in by Pirgousis, the substantive offence was complete. Indeed, it is not obvious to me why, on the admitted facts, Pirgousis could not properly have been convicted of taking part in the process of sale of the cannabinoid, which the plant material seized would ultimately have become as it continued to dry over the period of time until it was consumed.
For the above reasons it cannot be said that the sentence was so severe that it was plainly unjust or a sentence which no reasonable Judge could have imposed.
The second ground of appeal contends that the sentence failed to adequately reflect the lesser role played by the appellant in comparison to Ietto. The length of the appellant’s sentence is 75 per cent of Ietto’s sentence. In my view the appellant was fortunate to receive a sentence which was that much less than the sentence imposed on Ietto. The appellant played an important and significant role at both ends of the enterprise. On the occasion when Pirgousis demanded payment from an interstate purchaser, after Clark and Tassone had been arrested, he described himself as Ietto’s partner. There was some debate before the sentencing Judge as to whether the appellant should be sentenced on the basis that he was Ietto’s partner. Pirgousis’ counsel submitted that the appellant had referred to himself as Ietto’s partner only to increase the prospects of collecting the debt. There is very little to be gained by applying concepts derived from lawful commercial enterprises to the illicit drug trade. If one were to do so, and if it were to be accepted that Pirgousis was not Ietto’s partner, he was, at the very least, a joint venturer. The point of substance is that Pirgousis was deeply involved as a principal of the enterprise. The commission of the offence by Pirgousis whilst on bail is an important aggravating circumstance which was not shared with Ietto. This ground too must be dismissed.
Thirdly, Pirgousis complains that the sentence did not adequately reflect the lesser period of time in which he was involved in the enterprise. It must be remembered that neither the appellant, nor Ietto, were to be given a sentence greater than that which was warranted for the particular offence to which they had pleaded guilty because of their involvement in earlier criminal drug transactions. The relevance of the earlier trafficking was simply to deny both of them any claim to special leniency on the grounds that the offence was an isolated one. This ground of appeal is, for all practical purposes, subsumed by the last discussed ground and should be dismissed for the same reasons.
Fourthly, Pirgousis complains that the sentencing Judge failed to sufficiently take into account his progress towards rehabilitation following his release on bail in 2008. It was argued that he had worked hard in the family business both after his release on bail following his arrest and again subsequently on his release on home detention for the balance of the non-parole period imposed for the 2007 offences.
That Pirgousis worked hard in a small business and that he has not reoffended in the several years since the 2008 offence does not demonstrate that his prospects for rehabilitation are especially strong. The Judge doubted that Pirgousis was genuinely contrite. He suspected that he was simply sorry that he got caught. There is much material which supports the Judge’s assessment. After his arrest for the 2008 offence, Pirgousis persisted with an implausible factual account of his involvement in the 2007 offences to which he had pleaded guilty. Part of the reason for the delay in sentencing on the 2007 offences was the time that it took to negotiate an acceptable basis for his guilty plea. As I have already observed, even the factual basis which was ultimately accepted probably understates his involvement.
I wish to emphasise that the weight which will be accorded to an offender’s guilty plea and claimed contrition, will vary according to the circumstances. A guilty plea which comes only after an offender has taken advantage of the, sometimes long, time which it takes for a matter to come to trial, and after possible technical defences have been lost, does not demonstrate much willingness to facilitate the administration of justice. Nor does it demonstrate much depth of contrition.
At bottom, Pirgousis’ rehabilitation comprised a return to earning his living lawfully as he was before the series of offences for which he has been sentenced. There is little to suggest that he has gained the degree of insight into the wrongfulness of his conduct which is a necessary foundation for his future rehabilitation.
This ground of appeal should also be dismissed.
The appellant also claimed that his prospects of rehabilitation were enhanced by the termination of the long term domestic relationship after the commission of the 2008 offences to which I have already referred. The material put before the Judge on the nature of that relationship was contradictory. There is no reason to think that the relationship had anything more than a marginal influence on Pirgousis’ decision to offend.
Conclusion
I would dismiss the appeal.
WHITE J: I agree that the appeal should be dismissed and with the reasons of the Chief Justice.
STANLEY J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.