Regina v Jim Mouroufas

[2007] NSWDC 276

CITATION:	Regina v Jim Mouroufas [2007] NSWDC 276
HEARING DATE(S):	29 March 2007
JUDGMENT DATE:	29 March 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Convicted. Total term of 2 years and 6 months imprisonment with a non-parole period of 15 months and 14 days, and a balance of the term of 15 months and 16 days. To be released at the expiration of the non-parole period to supervised parole.
CATCHWORDS:	Knowingly concerned in the cultivation of prohibited plants (canabis) not less than the commercial quantity - History of earlier proceedings - Plea of guilty (to alternative count) - Enormous size of crop (over 850,000 plants, 3.2 tonnes, conservative street value of $40 million) - Offender was a worker at the crop site - First time in custody - Criminal history (in South Australia) for drug manufacture, illegal gambling and assault - Remorse expressed by offender - Offender has a number of medical problems - Sentences of co-offenders
LEGISLATION CITED:	s23(2)(a) Drug Misuse and Trafficking Act 1985 s33(2)(b) Drug Misuse and Trafficking Act 1985
PARTIES:	Regina Jim Mouroufas
FILE NUMBER(S):	07/11/0231
SOLICITORS:	Mr Borosh for the ODPP Mr Voros for the offender

JUDGMENT

1. Mr Jim Mouroufas was arraigned before me today charged with two offences. The first was that between 3 March and 7 April 2004 at Narrabri in the State of New South Wales, he cultivated a number of prohibited plants, namely cannabis, which was not less than the commercial quantity applicable to that plant. He pleaded not guilty to that offence. There was an alternative charge which was that between the same dates and the same place, he was knowingly concerned in the cultivation of a number of prohibited plants, once again cannabis and not less than the commercial quantity. Mr Mouroufas pleaded guilty today before me to that alternative charge. Accordingly, I convict him of that offence.

2. The offence is one contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty according to s 33(2)(b) of that Act of a fine of 3500 penalty units or imprisonment for fifteen years, or both.

3. Briefly the facts were that there was a police raid on a property at Narrabri on the morning of Thursday 8 April 2004. The property was known as Valala. Six people were arrested in a house on the property, and there was evidence that the property was occupied by a number of other people. Further people were arrested nearby the house and even more people were arrested in the vicinity of a substantial cannabis crop site which was growing within the boundaries of the property. The property site is some 200 square metres. The majority of the plants had been harvested and were drying on lines. All plants were approximately six feet high and consisted of dense “head”. Large plastic sheets were located throughout the crop site containing cannabis leaf or cannabis head and there was a large drying shed totally camouflaged, located near the crop site consisting of multi-levels of drying beds. Evidently the crop site was divided into three distinct plots. What is called crop site A had 1300 to 1600 plants, crop site B had 852,000 and crop site C had 450 to 550 plants.

4. The offender’s role was to harvest or clip or manicure the cannabis plants in crop B. Mr Mouroufas was not located on the property when the police raided it because he left a few days earlier with two other workers, including his own son-in-law. According to Mr Mouroufas he attended the property for about four days and admitted to working on the actual crop for a day before realising the nature and extent of the operation, so he pretended to injure his back so he would be able to safely leave the property on or about 5 April 2004.

5. The police obtained a warrant for his arrest and he surrendered himself to South Australian police in Adelaide on 20 April 2005. He came to New South Wales on 28 April 2005 and was charged and given conditional bail. The total amount of cannabis leaf seized at the property is some 3.2 tonnes with a conservative street value of $40 million.

6. This matter has some history of earlier proceedings. Evidently on 15 December 2005 the offender was found guilty by a jury in relation to one count of cultivating a prohibited plant, namely cannabis, not less than a commercial quantity. Her Honour Judge Hock sentenced him on 10 March 2006 to imprisonment with a non-parole period of two years, back-dated to December 2005 from which date he had been refused bail. The balance of the sentence was an additional two years. The offender appealed from his conviction and sentence, and was successful when the conviction appeal was upheld and the conviction and sentence were quashed and a new trial ordered. Evidently in negotiations since then, and up to this morning, Mr Mouroufas decided to plead guilty to the alternative charge to which I have referred.

7. As I have referred to, there were quite a number of people working on this property. A good number of them have been arrested and are in the process of being dealt with through the courts. I have been provided by the Crown, as part of exhibit A, with a list of those offenders and some limited information about the sentences which were imposed upon those who have been sentenced. The list is divided up into:

1. Those described as workers,
2. Those described as shareholder/supervisor, and,
3. Those described as having a higher role.
The Crown concedes that Mr Mouroufas in this case is in the category of a worker. I note from that chart that sentences imp osed on offenders who were all workers, with the surname Vamvouris, Dourampheys, Mouzakis and Spiliotopoulos were all three years with non-parole periods of fifteen months. Mr Borosh who appeared before me today for the Crown, agreed that they appeared to be relevant, comparable sentences so far as this case is concerned.

8. Turning to the subjective matters, Mr Voros, who appears before me today for Mr Mouroufas, tendered some material including a presentence report that records that Mr Mouroufas was born on 3 December 1950, so that he turns fifty-seven later this year. He was born in Greece and migrated to Australia with his family in 1964. He was married in 1977 and has four children one of whom is engaged to one of Mr Mouroufas’s co-offenders. He completed his primary education in Greece and his secondary schooling in South Australia. I might add that for most if not all of his life he has lived in South Australia since arriving in Australia from Greece. He has had various kinds of employment including a motor mechanic and a taxi driver and has also sustained some injuries in the course of his employment. There are no alcohol related issues but he has used cannabis since his teenage years and still uses it four or five times a week when in pain.

9. Mr Mouroufas said that his co-offender who was engaged to his daughter was in financial difficulties and they both decided to investigate making what they heard was “good money” from this property in Narrabri in New South Wales. He was told when he arrived that this work involved the cultivation of a cannabis crop and that he would be paid $5,000 a week. Mr Mouroufas expressed to the Probation Officer his regret at having been involved in the offence and particular sorrow for getting his daughter’s fiancé involved and evidently became somewhat emotional whilst discussing the offence. He suffers from diabetes as well as pain as a result of past injuries suffered at work, which included a significant assault whilst he was a taxi driver. Mr Mouroufas admitted to the Probation and Parole Officer that he had been before the courts in South Australia in his earlier years. Any supervision or rehabilitation should incorporate, so the Probation and Parole Officer said, a strategy to deal with the use of cannabis. He was assessed as unsuitable for a community service order or a periodic detention order.

10. Another document tendered was a report by a psychologist, Misia Temler. Much of what was contained in her report is similar to what was in the report of the Probation and Parole Officer. Once again, he told the psychologist that he was very sorry for what happened and exhibited remorse and guilt, especially since he had involved his son-in-law. Evidently his case achieved some publicity in newspapers in South Australia, including those circulating amongst the Greek community and he experienced a good deal of shame as a result of that. The report also records that this occasion will be Mr Mouroufas’s first time in gaol. Psychological tests put him in an average range of intelligence and noted a recent very high score in respect of depression and anxiety. It also records, in referring to this being Mr Mouroufas’s first time in gaol, that he is terrified of the experience and is very worried about his health, particularly given his diagnosis of diabetes. One of the tests administered raises the strong possibility that Mr Mouroufas has a substance dependence disorder, hence the report recommends the need for an alternative to cannabis for Mr Mouroufas’s ongoing rehabilitation.

11. There were also tendered a series of character references in respect of Mr Mouroufas. I place little weight on those with one exception. None of them appears to acknowledge the reason why Mr Mouroufas is brought before the courts at the moment, nor does any of them refer to his previous criminal record. The one exception is from a long-term friend who refers to his present personal problem which is described as a legal matter. Referring to his record in South Australia, and I should add that he has none in New South Wales, he has quite an extensive record in South Australia, including a number of convictions relating to drug manufacture or production, as well as convictions for less serious matters involving being in illegal gaming establishments and assault. With a record like that, I am somewhat surprised that the character references are so glowing, but that may well be a compliment to Mr Mouroufas and how he behaves and presents himself in the presence of others. But he does not have a good criminal record, and his criminal record is one that is relevant to the matter that he is before me on now.

12. The Crown Prosecutor in his written submission pointed out that Mr Mouroufas has spent fifteen months and fifteen days in custody for this offence and that because of the serious nature of the offence, he must be given a period of imprisonment. The Crown acknowledges that his plea was entered at the first available opportunity even though he pleaded guilty only today to the alternative and faced his trial before. The Crown acknowledges that a discount in the region of twenty-five per cent or less would be not inappropriate and, significantly, the Crown concedes that a non-parole period of fifteen months and fifteen days would be an appropriate period of full-time custody with a balance of fifteen months, which effectively means that he would be released today.

13. Mr Voros for Mr Mouroufas drew my attention to the contrition exhibited by his client to the Probation and Parole Officer and to the psychologist. I acknowledge that, although indicate that it would have carried more weight had it been expressed by Mr Mouroufas in person in the witness box. He invited me to offer him a discount of some twenty-five per cent on the sentence and I accept that submission, given the Crown’s attitude to the circumstances in which the plea was entered. Mr Voros points out his client’s intention to leave and evidently his client did leave. In support of a finding of special circumstances he points out that this is his client’s first time in custody, his client’s age is fifty-six years and he has a number of health problems. I should have added that I have a report from a medical practitioner who confirms that Mr Mouroufas suffers from a number of medical problems, including diabetes.

14. In my opinion, this is an appropriate case for a custodial sentence. At the same time, I regard it as appropriate that there be a longer period on parole than the usual statutory ratio. In saying this I accept the submissions of Mr Voros as to the relevant factors in this regard. I have determined that an appropriate sentence to impose upon Mr Mouroufas is two and a half years, that is, thirty months, and that the non-parole period should be a period of fifteen months and fifteen days which expires today. Stand up, Mr Mouroufas.

15. Jim Mouroufas, for the offence of cultivating a commercial quantity of cannabis between 30 March and 7 April at Narrabri, I sentence you to two and a half years imprisonment, that is, thirty months imprisonment. I specify a non-parole period of fifteen months and fifteen days which commenced on 15 December 2005 and expires today.

16. The head sentence, Mr Mouroufas, is 30 months, two and a half years, and the non-parole period is fifteen months and fifteen days and the non-parole period has expired today.

Mr Crown, is there anything else I need to do?

BOROSH: The only thing that occurs to me that might be helpful, if your Honour puts a recommendation that the parole be - he be allowed to go to South Australia and serve parole period in South Australia.

HIS HONOUR: Yes.

BOROSH: Your Honour can only recommend, but it may help.

HIS HONOUR: Yes, I agree with you. And, Mr Crown, because it is a sentence of less than three years, I fix the non-parole period, don’t I?

BOROSH: Yes, your Honour.

HIS HONOUR: So, the non-parole period I fix at fifteen months and fifteen days. I recommend that Mr Mouroufas be permitted to return to South Australia during the period of his parole. I also recommend that the parole authorities in New South Wales liaise with the appropriate authorities in South Australia to arrange for Mr Mouroufas to be supervised in South Australia. I recommend that that supervision deal with the issue of the use of illegal drugs by Mr Mouroufas, specifically cannabis.

Mr Crown, anything else?

BOROSH: No, thank you, your Honour.

HIS HONOUR: Mr Voros, is there anything I should add to that sentence by way of order or direction?

VOROS: Perhaps I didn’t hear your Honour, did your Honour have that the non-parole period had expired--

HIS HONOUR: Today, it expires today.

VOROS: Expires at midnight today? If it’s the intention that the offender be released, your Honour’s current sentence would mean that he would be released at midnight, as apposed to--

HIS HONOUR: Right, so the better course would be if I specified for it to finish yesterday are you saying?

VOROS: Yes, your Honour.

HIS HONOUR: Mr Crown, any problem with that?

BOROSH: I have no submissions to make.

HIS HONOUR: All right. Mr Mouroufas, you’ve heard what your representative has suggested. If I make the non-parole period finish today, then you probably have to stay in custody until midnight, whereas, the obvious intention is that you be able to be released today, once the formalities are completed. Am I right in thinking that’s your wife in court? Yes.

So I amend the sentence and specify a non-parole period of fifteen months and fourteen days from the same date, to expire yesterday, 28 March 2007.

Is that right, Mr Voros?

VOROS: That is right, yes. Thank you, your Honour.

BOROSH: Nothing from the Crown, your Honour.

HIS HONOUR: And I direct that he be released to parole today, once he has completed whatever formalities need to be completed.

oOo