R v Panagakos [2003] NSWCCA 81

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 2003

JUDGMENT 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 32 CASES 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 383 PARTIES : 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 COURT District Court JURISDICTION : LOWER COURT 02/11/0019 FILE NUMBER(S) : LOWER COURT Dalgleish ADCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60021/03

STUDDERT J SMART AJ

Tuesday 1 April 2003 REGINA v BILL PANAGAKOS Judgment 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: