R v Robert PAVAN

[2009] NSWDC 82

CITATION:	R v Robert PAVAN [2009] NSWDC 82
HEARING DATE(S):	1 May 2008 12 September 2008 24 April 2009
JUDGMENT DATE:	24 April 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment consisting of a non-parole period of seven and a half years and a total term of twelve years.
CATCHWORDS:	Criminal Law - Sentence - Supply large commercial quantity of drugs
PARTIES:	The Crown Robert Pavan
FILE NUMBER(S):	DC 06/11/0336
COUNSEL:	D Staehli SC (Crown) B Stratton QC (Offender)
SOLICITORS:	NSW DPP R.F Bergagnin & Co Solicitors

SENTENCE

1 HIS HONOUR: Robert Pavan pleaded guilty to an offence of supplying a large commercial quantity of cocaine. Encompassed within that offence were three separate transactions, each involving approximately a kilogram of cocaine. In each case the offender’s role was to identify purchasers of that large quantity and facilitate the supply of that cocaine from a Mr Big to someone who would then on-supply the drug, perhaps then in turn to others in the chain, before the drug was ultimately distributed to users.

2 The offender’s conduct extended over a relatively short time, but it was nevertheless gravely criminal. The offender took a significant role in the drug supply transactions, identifying purchasers and supervising the supply and payment. It is accepted that he must receive a significant period of imprisonment in order to reflect the criminality of his conduct.

3 He is now sixty years of age. He has some criminal history but there is nothing remotely approaching the seriousness of his present offending. His previous criminal history seems to have been related to his conduct involved in the racing industry. There were tendered today an impressive series of references from friends and family. It appears that the offender is in many respects a man of good character. He is prepared to go very much out of his way to assist his friends and family and has for many years been devoted and dedicated to his family’s upbringing.

4 When his first wife left he took over the sole care of his three children. He remarried but his second wife also left at about the same time that his daughter’s marriage broke down. In those circumstances his dedication to his children and grandchildren has been far beyond average. He managed to reach fifty-six years of age with only minor matters on his criminal history. That is testament to his underlying character and suggests among other things that he has good prospects of rehabilitation, and is unlikely to re-offend due in no small measure to the substantial support he will receive on release from custody.

5 The offender became involved in these transactions after meeting a man by the name of Hatfield. He was one of the Mr Bigs I referred to earlier. Hatfield together with two others, Leslie Mara and Michael Hurley, were involved in large-scale cocaine importation and distribution. Having a large quantity of cocaine in their possession, they needed to sell it for profit. Part of that process required the identification of prospective purchasers and the handing over of the cocaine and the receipt of money.

6 The offender said that he owed on Hatfield’s behalf a significant sum of money, and that Hatfield suggested that one way that the money could be recouped was if the offender became involved in the first of the transactions. That was the supply of a kilogram of cocaine to two men, Hinch and Dowe, on 23 February 2005.

7 It was the offender who caused Mr Dowe to be recruited to the chain of drug supply. To put matters more clearly, it was the offender who identified Dowe as a prospective purchaser and then made arrangements for the handing over of the cocaine and the receipt of the money. The offender was present when the actual transaction took place, supervising it and making sure that all went to plan. How the offender was able to identify someone who wanted to buy a kilogram of cocaine was not made clear.

8 The other two transactions were broadly similar in that the offender identified a Mr Stephens as someone who was involved or interested in obtaining two kilograms of cocaine. On two separate occasions the offender arranged the supply of about a kilogram of cocaine to Mr Stephens for the payment of significant sums of money. These transactions would likely not have taken place were it not for the offender’s involvement. He had a very significant role in what occurred.

9 Rather than sentencing him according to labels such as “principal” or “courier”, I will sentence him for what he has done and that is, as I have described earlier, obtaining the purchaser, arranging transactions and supervising them.

10 The offender was himself using cocaine at the time. A suggestion that he was not a user at the time appearing on one of the reports appears to be a mistake, but this was not a case of a user dealer becoming involved in drug transactions simply to facilitate his or her drug use. This was a case of an offender involving himself in large scale drug supply for financial advantage, even if that financial advantage may have been relatively small.

11 The offender said that he spent the money he received on living expenses. That the offender would involve himself in such serious criminality just to help his living expenses is puzzling, especially given the age at which he first committed this serious offence. He explains that it was at a time of some crisis in his life. His second marriage had just broken down, as had his daughter’s. That scarcely explains what occurred. Marriages break down with regularity. People find themselves at times of crisis for all manner of reasons. Yet very few of them supply three kilograms of cocaine as a result. Certainly the offender was at a low point when he committed these offences, but it does not explain what he did in any way.

12 Since being arrested on 9 May 2005, the offender has performed very well in custody, and that is consistent with what I described as his underlying character. He has expressed what he described as remorse and contrition both in relation to the effect of drugs in the community, and also to the effect of his incarceration on his family, a matter which I gather is of great concern to him.

13 As I mentioned the offender pleaded guilty. The question of the appropriate discount to reflect the utilitarian value of that plea is somewhat complicated. The matter has something of a history, part of the complication in this matter arising from the conduct of the law enforcement authorities and various challenges to that, going all the way to the High Court. It is not necessary for me to recount that history.

14 In broad terms, the authorities say that for a plea at committal the appropriate discount is one of twenty-five per cent. For a plea at first arraignment in this court, the appropriate discount is fifteen per cent. Because of the complicated nature of the present proceedings, this is a matter where the discount should be somewhere in the middle. The utilitarian value of the plea is somewhere in the middle of those two circumstances I have mentioned. I will discount the sentence I would otherwise have imposed by twenty per cent to reflect the utilitarian value of the plea.

15 The seriousness of this offence is obvious from the way I have described it. It is also made clear by the fact that the maximum penalty for this offence is life imprisonment. That is an appropriate reflection of the terrible consequences of conduct of this kind, where people with seemingly no or little regard to the lives and welfare of other citizens involve themselves in large scale drug transactions for financial advantage. Also demonstrating the seriousness of the offence is the fact that it carries with it a standard non-parole period of fifteen years. That, of course, is not of direct application because of the plea of guilty but it reminds as a guide post to the appropriate sentence to be imposed in this case.

16 It of course is appropriate to an offence in the middle of the range of objective seriousness, and of course the “range” is not a single point. I am satisfied that it is appropriate to describe the three transactions in this offence as being in the middle of the range of objective seriousness.

17 Many others involved in these drug transactions have been sentenced, one of them by me. Of course, their conduct and their subjective circumstances were different, but I have been referred to the sentences imposed on Dow, Finch and Stephens in the course of the submissions.

18 The principles of parity do apply, such that I should ensure that the offender is not left with a justifiable sense of grievance when he compares the sentence imposed upon him with the sentence imposed upon the others. As I said, there are many differences between their cases and this, the most important of which is that the offender was involved in three separate transactions, more than Finch, Dow or Stephens. It is significantly more serious for the offender to have involved himself in the further supply of one kilogram when comparing the sentence imposed upon him to the sentence I earlier imposed upon Stephens. The supply of a kilogram of a dangerous drug such as cocaine is not something lightly set aside and ignored.

19 It is important to emphasise also that it is not a simple case of, on three occasions the offender doing a single illegal act. Each time he facilitated the supply of drugs, many separate acts were required, negotiating, planning and organising the deal.

20 There has been no challenge to the submission on behalf of the offender that I would find special circumstances. This will be his first time in custody. The sentence I will impose upon him must necessarily be lengthy and he will be assisted by support upon his release from custody. It is appropriate that the sentence date from 9 May 2005, the day on which the offender was arrested.

21 The offender is sentenced to imprisonment. I set a non-parole period of seven and a half years. This will expire on 8 November 2012, on which day the offender is eligible to be released to parole. I set a total sentence of twelve years.

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