R v Louie PUCARIELLO [2012] NSWDC 70

District Court New South Wales

Medium Neutral Citation: R v Louie PUCARIELLO [2012] NSWDC 70 Hearing dates: 23 March 2012 Decision date: 23 March 2012 Before: Haesler DCJ Decision: Sentenced to imprisonment. I impose an aggregate sentence of 3 years 6 months, consisting of an aggregate sentence non parole period of 1 year 9 months. Catchwords: CRIMINAL LAW - Sentence, Operation Schoale Legislation Cited: s 29 Drug Misuse and Trafficking Act Cases Cited: Olbrich (1999) CLR 270 Georges [2011] NSWDC 61 Peisley (2010) NSWDC 240 Natasha Youkhani [2011] NSWDC 204 Tania Youkhani [2011] NSWDC 63 Postiglione v The Queen [1997] 198 CLR 295 Green v The Queen [2011] HCA 49 Weininger v The Queen [2003] 212 CLR 629 Borkowski [2009] NSWCCA 102 at [32]. Howie J Thawer [2009] NSWCCA 158 at [46] Muldrock v The Queen [2011] HCA 39 Hili [2010] HCA 45) Mill (1998) 166 CLR 59 at 63 Category: Sentence Parties: Regina (Crown) Louie PUCARIELLO (Offender) Representation: Mr R McCrudden Mr M Gibson (Director Public Prosecutions) File Number(s): 2007/00016579

SENTENCE 1HIS HONOUR: Operation Schoale, a joint investigation by New South Wales Police and the New South Wales Crime Commission, resulted in the arrest of a large number of people associated with the importation, distribution or warehousing of cocaine and profits of illicit drug sale. 2The operation and the matters that resulted from it indicate the enormous profits which such crimes can generate. Louie Pucariello, the Offender, was an associate of the two principals in the importation, Luke Sparos and Alan Moradien. He was not a close associate, he just knew them. Mr Sparos is presently serving a sentence of fifteen years and Mr Moradien is serving a sentence of sixteen years and nine months. 3The agreed facts, Exhibit A1, reveal the police executed a search warrant on the Offender's home in Moorebank. I have seen the video of that search, Exhibit A7. Over $1.5 million in cash was found and just under 320 grams of cocaine was found. 4The matter has a lengthy history. It was listed today to resolve a factual dispute. The Offender has wisely chosen not to contest the agreed facts which are tendered as part of the Crown brief. Those facts can be reduced to a series of simple and basic facts, which reflect the critical elements of the two offences, for which he must be sentenced. The offender, by his plea, has accepted the elements of each offence have been proved and admitted his guilt to them. I propose, as is only proper, to sentence on the basis of the agreed facts. 5The cocaine was found in two areas of the kitchen. That in the pantry appears clearly to have been warehoused for return to those who the offender knew would supply it. Another smaller quantity was found in the kitchen with scales, bowl and spoon. There are a number of possible explanations for this: The first, it is a separate quantity, unrelated to the offence, available for his own use and, given s29 of the Drug Misuse and Trafficking Act also for supply; the second, it is part of the larger warehoused quantity which he had expropriated for his own use and which could have been disposed of to others, the balance of which was to be returned; or,a third, the drugs were his payment for involvement in this matter, which could only have been realised by its subsequent sale. 6The agreed facts do not assist. They simply note that this smaller quantity was for the purpose of supply. That term is vague. I apply so far as I can what is set out by the High Court in Olbrich (1999) CLR 270. I cannot find matters of aggravation proved unless they were established beyond reasonable doubt, and despite the Crown submissions, I am prepared to give the offender the benefit of those doubts I do feel are available to him. 7Explanation 2 seems to me, the most likely of the three simple explanations, but here I simply must sentence him on the basis that some of the drugs found were to be returned, to his principals for ultimate supply in the community and others were held by him for the purpose of supply. The way they were held does indicate that there had been some use of the smaller quantity of those drugs by the offender or perhaps others with whom he was associated. 8I note that the Offender told Mr Tim Watson-Munro, his psychologist, that he did not use illicit drugs. He said in evidence today that he told Tim Watson-Munro that he did not use illicit drugs, but I note that he has a prior conviction from 1987for use of illicit drugs. 9Returning to the agreed facts, the offender admitted to police that he had possession of the drugs and money. It is agreed that he was warehousing both money and drugs. At the relevant time police were closing in on Mr Sparos and members of his criminal group. This offender clearly agreed to hold the drugs and money and, if it had been successful, he would have enabled those persons to avoid police detection and prevent seizure of the drugs and money. 10I find that he well knew that the sale and possession of drugs was illegal and that when he returned them they were to be sold. He well knew that the money came from profits derived from supplying illicit drugs. He is not a naive man. He is not an ignorant man. He had the personal experience of serving time in jail for being involved in the supply of prohibited drugs. He is not to be sentenced again for those offences but they disentitle him to the leniency often shown first offenders. He also, as I have indicated, committed these offences knowing full well the true consequences of what would happen to him if he was caught. 11My use of the term "warehousing" should not be taken as minimising the seriousness of these offences. As the statement of Detective Sergeant Bailey (Exhibit A6) makes clear, the drugs found, if sold as packaged, could result in profits of between $65,000 and $100,000. If reduced to street deals considerably more money could have been made. The offender was helping others to avoid detection to allow the sale of cocaine to continue and to preserve the group's profit. That could be the only consequence of what he was doing. He was low in the hierarchy and only involved for a few days, but in that time what he did was play a crucial role which, had Operation Schoale not been so well executed, could have allowed the group's trade to continue. 12The distribution of illicit drugs causes considerable harm, not just to those who purchase and ingest such drugs, but to the community in general. The illicit trade in drugs is one of the principal sources for crime in the community. It is not just the sale of drugs, it is the crimes that are committed by those who seek to obtain funds for drugs and the destruction to family life and personal life that drugs cause. I am not here to give this offender or anyone else a lecture about the use of illicit drugs but it must be made perfectly clear, that those who involve themselves in any way with the sale of drugs for profit will almost inevitably end up in goal if caught. The seriousness of the supply offence is reflected in the maximum penalty of twenty years and fact that Parliament has sought to fix a standard non-parole period of ten years for these offences. 13Here the facts and personal circumstances of the offender provide many reasons for a significant departure from that standard non-parole period. So far as the proceeds of crime offence is concerned the offender acted to warehouse the money. There is no evidence that he shared in any benefits provided by that large sum of money but I cannot accept he acted out of pure altruism. He must have expected or received some reward. 14The amount of drugs and money alone, however, indicate the seriousness of these offences. As I have noted in relation to other related sentences I have imposed, the immense sums able to be taken from users by drug traders are clearly illustrated by this case. Like the trade in drugs, black money in the community also causes immense harm. It undermines the community's economic wellbeing. To willingly assist in this process knowing what he was doing and knowing the source of money was illicit, all matters which are elements of this offence, makes this when one considers the sum involved a very serious crime indeed. Despite the very strong subjective case, only full-time custody would reflect the objective circumstances of the two offences. 15I have to date sentenced a number of offenders caught following Operation Schoale. I cannot ignore the fact of those sentences nor can I ignore the fact that Sparos and Moradien exploited friends, relatives and associates in their attempts to hide their ill-gotten gains and their drugs. The sentences I have imposed for related matters range from a twelve months suspended sentence for recklessly dealing with $200,000 (Georges [2011] NSWDC 61) to three years and nine months for recklessly dealing with $10 million (Peisley (2010) NSWDC 240) and three years nine months for knowingly dealing with $4.5 million (Natasha Youkhani [2011] NSWDC 204). Tania Youkhani received a two year sentence for knowingly dealing with $2.5 million of the syndicate's money (Tania Youkhani [2011] NSWDC 63). 16All these offenders received the full benefit of a 25% reduction for their early pleas of guilty. Each offender, however, committed individual and different offences and each offender's personal circumstances differed significantly. I have regard to what fell from the High Court in Postiglione v The Queen [1997] 198 CLR 295 and more recently Green v The Queen [2011] HCA 49 about proportional sentences and the justice that must be achieved when sentencing those involved in the same criminal enterprise even where the actual offences differ. But, as I have said, each sentencing exercise is different and each offender an individual. 17 Sentences, however, should be applied to each offender, and each offence with consistent principles, but this does not require numerical or mathematical equivalence. Sentencing is not a mathematical exercise. It is a synthesis of competing features which attempt to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money see (Weininger v The Queen [2003] 212 CLR 629). 18Critical to the sentence here are the purposes of sentencing. A sentencing must by its severity seek to ensure others are not tempted to risk punishment for the rewards the trade in illicit drugs offers. The Offender too must learn not to succumb to temptation in the future. I am prepared to accept that he has learnt his lesson. 19 The Offender was arrested on 2 March 2007 and given Supreme Court bail on 5 April 2007. He served a period of one month and three days, thirty-four days for which he will be given credit. The Offender was committed for trial on 7 July 2010. His trial was listed to commence on 28 March 2011. The guilty plea was entered on 25 March 2011. Thereafter the offender has dismissed his lawyers and was for a period unrepresented. 20The matter was adjourned to enable fresh representation and could not be finalised because court time was not available. Despite the delay, as with all Operation Schoale's matters, the plea had utilitarian value. I am conscious of the points set out by Howie J in Borkowski [2009] NSWCCA 102 at [32]. While the timing of the plea is a critical factor no one factor can determine the exercise of a judge's sentencing discretion (see Howie J Thawer [2009] NSWCCA 158 at [46] and Muldrock v The Queen [2011] HCA 39). 21Here I propose to allow a reduction in sentence of 12.5%to reflect the plea's utilitarian value.