District Court New South Wales Medium Neutral Citation: R v Cuzman & Bucataru [2012] NSWDC 274 Hearing dates: 23/11/2012 Decision date: 29 November 2012 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Mr Bucataru: Count 1 - Sentenced to a term of imprisonment 8 years and 6 months. Non parole period being 5 years and 3 months. Balance of the sentence being 3 years and 3 months. Count 4 - Sentenced to a term of imprisonment of 3 years. Mr Cuzman: Count 1 - Sentenced to a term of imprisonment of 8 years and 6 months. Non parole period being 5 years. Balance of the sentence of 3 years and 6 months. Count 4 Sentenced to a term of imprisonment of 3 years. Catchwords: CRIMINAL LAW: Sentence: Drug (Misuse and Trafficking) Act 1985, knowingly take part in supply of commercial quantity of prohibited drug, parity, health of prisoner in custody. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug (Misuse and Trafficking) Act 1985 Crimes Act 1900 Cases Cited: R v Olbrich [1999] HCA 54 R v Gipp (2006) 161 A Crim R 173 R v Gu [2006] NSWCCA 104 R v Kairauz [2005] NSWCCA 247 R v Hemsley [2004] NSWCCA 228 R v Badanjak [2004] NSWCCA 395 Jimmy v R [2010] NSWCCA 60 Lowe v The Queen [1984] HCA 46 Kennedy v R [2010] NSWCCA 260 Category: Sentence Parties: Director of Public Prosecutions Mr Cuzman - accused Mr Bucataru - accused Representation: Mr O'Brien - Director of Public Prosecutions Mr Price - Mr Cuzman Mr Coroneos - Mr Bucataru File Number(s): 2010/14761 2010/14763 sentence 1HIS HONOUR: Georghe Bucataru and Christian Cuzman appear today for sentence in relation to two offences for which they were each found guilty after a trial, which commenced, as my note has it, on 27 September 2012 and concluded on 23 October 2012. 2They were found guilty by a jury in relation to count 1, which alleged that they, between 3 March 2010 and 22 March 2010, at Sydney and elsewhere in and outside the State of New South Wales, knowingly took part in the supply of a prohibited drug, namely heroin, being an amount not less than the commercial quantity for that drug. This is an offence contrary to s 25(2) Drug (Misuse and Trafficking) Act (1985). It carries a maximum penalty of twenty years imprisonment and/or 3,500 penalty units and has a standard non-parole period of ten years. 3The jury, in finding them guilty of that count, did not have to consider the alternative count alleging that they knowingly took part in the supply of a prohibited drug, unidentified, pursuant to s 25(1) Drug (Misuse and Trafficking) Act (1985). 4They were acquitted of count 3 which is, in its terms, irrelevant for the sentencing purposes, but were convicted because of the finding of guilt in relation to count 1, and the facts relating to count 1, of a charge contrary to s 93T(1) Crimes Act (1900) of each, between 1 March 2010 and 1 June 2010. at Sydney and elsewhere outside the State of New South Wales, participating in a criminal group knowing that they were participating in a criminal group. This required proof by the Crown that each of them was part of a criminal group which, as I directed the jury, requires proof of a group of not less than three. 5The Crown case in relation to count 3, intimately tied up with the allegation in relation to count 1, was that the criminal group that they were a part of included the late Mr Magyari, who figured prominently in the trial, albeit that he was not a participant. Mr Magyari, who was arrested at about the same time as the accused, died in custody before trial. 6The prisoners were arrested on 9 June 2010, and had varying periods in custody. They each were in custody between 9 June 2010 and 20 August 2010, when they were granted bail, and then have been in custody since the verdict of the jury from 23 October up until the present time. 7It was agreed at the last hearing of the matter last Friday afternoon that taking into account the time in custody would require the dating of the sentences from 12 August 2012, and this I will do. 8For the purposes of sentencing, of course, I have the evidence at trial - neither accused gave evidence in the trial - and I have a body of material that has been presented by the defence and the Crown for the purposes of the sentence proceedings. This material has included a psychologist's report, in respect of both accused, from the same source. A large number of character testimonials and other material from the defence and from the Crown. The evidence on sentence includes the criminal histories of the prisoners and some material in the character of comparative cases, cases on principle and the like. 9It was from the outset in the submissions of counsel for both accused the position that in sentencing each of the accused the Court was required to apply principles of superior courts, laying down the role of the sentencing judge after verdict. It is correct that a sentencing judge may form his own view of the facts so long as it does not conflict with the jury's verdict, to cite Savvas v R (1995) 183 CLR 1, but it is also the case, as was observed in Cheung v R (2001) 209 CLR 1, citing, with approval, what was decided by the New South Wales Court of Criminal Appeal in R v Isaacs (1997) 41 NSWLR 374, that it is the duty of the sentencing judge to determine the facts relevant to sentence. The facts may emerge from the evidence at trial sometimes during the sentencing proceedings, but the facts found by the sentencing judge must be consistent with the verdict of the jury. 10A second constraint is that findings of fact to be made against each of the offenders must be arrived at beyond reasonable doubt. There are some other observations that have been noted in Mr Coroneos's helpful submissions. I shall sentence the prisoners accordingly. 11In relation to the sentencing of the prisoners, in a general sense of course I am required also to have regard to the decision of the High Court of R v Olbrich ([1999] HCA 54), which is particularly pertinent in this case given particular submissions that have been made not addressing matters requiring proof by the Crown necessarily, although there have been particular submissions in relation to that aspect, in relation to matters where the accused individually are required on the balance of probabilities to establish mitigating matters. 12From the way the case was conducted, in the context of the directions the jury were given to determine guilt, or otherwise, in respect of counts 1 to 4, I have reached the following conclusions beyond reasonable doubt. Where a matter is otherwise resolved I shall say so. 13Csaba Magyari was a native of Hungary, but, as I understand it, a citizen of Australia, who in 2009 and 2010 was actively involved in the supply and sale of large quantities of prohibited drugs, including the prohibited drugs heroin and cocaine. In the first part of 2010, in fact up until the time of his arrest shortly before the arrest of the accused, he had premises in which he resided at Birkenhead Point in Drummoyne. He had a form of office, it would appear, in the suburb of Russell Lea, which is near Drummoyne, and he had a flat or an apartment in Bexley North, which was a form of safe house, or processing house, or location, for the packaging and dissemination of drugs. 14In the Bexley North premises, as revealed in the police searches which were largely videotaped, he had the means for pressing, mixing, cutting, and/or packaging significant quantities of prohibited drugs. He was responsible for the supply and sale of prohibited drugs not only in Sydney, but in Melbourne, Perth, the Gold Coast, Brisbane, and, as it emerged in this case, in Adelaide. 15Apart from his safe house, within his residence at Drummoyne, there were a number of indicia of his involvement in the supply and the sale of prohibited drugs. I need not detail them. It is important to understand, in the context in which the prisoners were found guilty by the jury, that the overwhelming evidence was not only that Mr Magyari was involved in the sale and dissemination of prohibited drugs, but that clearly was his primary business. It would appear that he recruited various people to work for him, as couriers, delivery people and the like. One such person was Ms Suto, who was the principal Crown witness against each of the accused in respect of counts 1, 2, and in respect of part of the Crown case in relation to count 4. The Crown case in relation to count 4 was concerned with not just the alleged supply that occurred, as particularised in the indictment, in late March 2010, but also the events that led to the arrest of Mr Bodo as he was travelling along the Hume Highway with a substantial quantity of heroin in his possession. 16Ms Suto clearly had been financially maintained by Mr Magyari in 2009 and into 2010, and there was evidence available to the jury, which I accept, that she allowed her bank account to be used as a "clearing house" or a means to launder funds that Magyari had obtained from the sale of prohibited drugs. I must confess to some disappointment that the evidence relating to her bank records that was available to the jury in this trial was so limited, being for a period in August, September, and part of October, as I recall it, in 2009, but that limited window of opportunity to view her personal financial records showed her spending substantial sums of money on items related to her personal pleasure out of money provided to her by Magyari, and then in substantial part - giving back funds to him. 17This laundering of Magyari's proceeds from his drug sale business had been occurring before, during, and after the times that she travelled to Adelaide, on the first occasion to meet the two accused in early September 2009, and on a second occasion, in her evidence, when she met Mr Bucataru in a car park in Adelaide. 18The clear impression one had from her evidence, and the surrounding circumstances of her involvement in the events giving rise to count 1, was, from my perspective, that she was not entirely truthful about her relationship with Magyari. Particularly in respect of the financial benefit she received from him, and her knowledge of his involvement in the prohibited drug trade. Be that as it may, she clearly was an employee of his in the drug supply business, and, apart from her travels to Adelaide, one such occasion in late March 2010 concerned with the delivery of prohibited drugs, she also apparently was recruited to travel to Brisbane and/or the Gold Coast. 19I read the findings of her Honour Judge Tupman in relation to her, and I note a fact that I did not know, that when Magyari was arrested she was actually at Coffs Harbour in the process of delivering prohibited drugs for Magyari. 20As I mentioned earlier, she had travelled to Adelaide on two occasions in 2009. On one such occasion, which was not disputed, she travelled with Magyari to a meeting with Mr Bucataru - who Mr Magyari rather deprecatingly called "The Thin Gypsy" - and Mr Cuzman - who similarly deprecatingly he referred to as "The Fat Gypsy". 21This meeting took several hours, the detail of which is not entirely clear. It is clear, and established beyond reasonable doubt, that this meeting was designed, in part, to establish a relationship between Mr Magyari and the two accused. 22The purpose of her second trip to Adelaide to meet Mr Bucataru is not entirely clear. One can be suspicious about it, but no direct, or indirect evidence arises to establish the purpose. 23It must be said that Ms Suto was not entirely trusted. It is clear that Mr Magyari, given the nature of his primary business, was very suspicious of others, and very vigilant to maintain his security. This is evidenced by the internal security and cameras at his apartment at Drummoyne. It is also evidenced by the fact that when Ms Suto delivered the drugs, the subject of count 1 in the indictment, to Adelaide, over the period between 20 and 21 March 2010, Mr Magyari had installed a tracking device in her car. Whether she was aware of it or not is not clear. But he was able to check on where she was. 24Unbeknownst to Magyari, he came under police notice because of a police investigation into what was described, for the benefit of the jury, as "Middle Eastern Crime". Apparently there was some criminal organisation, with whom Magyari was in some contact. This had to be explained to the jury so as to ensure that the prisoners were not prejudiced by the fact, as it emerged in the trial, that there was an ongoing telephone interception program, or investigation, occurring in relation to telephone services connected to Mr Magyari. This ultimately led to the interception of telephone calls between Magyari and Suto and Bucataru and ultimately Mr Cuzman and Magyari, and thus leading eventually to the arrest of the prisoners. 25As I understand the matter, the persons Bucataru and Cuzman were unknown to the investigating police until they were detected in this investigation. The telephone intercept calls that I have heard establish clearly a trusting relationship between Mr Magyari and the two accused. It is clear, in the context of the telephone intercepts that were heard by the jury, that there was a continuing business relationship being developed between the two accused and Mr Magyari. 26Although the evidence of Mr Cuzman's trip to Sydney immediately before the arrest of Mr Magyari, and giving rise effectively to count 3 in the indictment, was not to be taken into account by the jury as relevant to count 1 and/or count 2, it is clear by the fact that Mr Magyari took Mr Cuzman to his safe house, whilst he was in Sydney for a few days, that Magyari trusted Mr Cuzman. Given the contemporaneity of that visit to the subsequent police search several days later it is clear that apartment was already set up for the packaging, cutting and processing of prohibited drugs. 27Of course I appreciate, as was made clear at the trial, that there was no evidence that Mr Cuzman actually saw anything within the apartment. But it is also clear that he had to be trusted by Mr Magyari to be taken there in the first place, whether he saw anything or not, giving Mr Magyari's very suspicious nature. 28Ms Suto was specifically recruited on 20 March 2010 to take a package to Sydney to be delivered to people in Adelaide. It turned out, of course, that given the contact between Mr Magyari and Mr Bucataru during the course of her travels to Adelaide and when she arrived at Adelaide, that ultimately the delivery was to be made to Mr Bucataru and to Mr Cuzman. 29She performed this task for a payment of at least $2,000, claiming however that she did not know what was inside the package she was given. The package was wrapped in green-coloured paper and made up to look to be a present, and was from time to time referred to as a present. It was in the shape of a brick, but did not weigh as much as a brick. She clearly must have suspected that it must have been a prohibited drug, apart from the fact she was being paid a not insignificant sum of money to travel to Adelaide. 30She drove directly to Adelaide, stopping only for refreshments and fuel, driving overnight and driving at about 10am in the morning on 21 March. It is clear from the telephone intercepts that Mr Bucataru was expecting her and ultimately after some confusion as to the meeting place with Mr Magyari, she eventually drove to the street in which Mr Bucataru's home was located, and finally or ultimately, after packing her motor vehicle and perhaps moving it one time, went into the home of Mr Bucataru. Mr Bucataru had been given details by Mr Magyari of the description of her car. 31Mr Magyari spoke to her in code about the "present" being "gaming chips", the price of which was "206 or something". Evidence from an experienced police officer at the trial as to the cost of heroin in wholesale form, quantities of 350 grams and 700 grams were frequently used as quantities for wholesale supply. He revealed that for a 350 gram "block" the price, depending upon purity, varied between 90 and $120,000, and as to a bigger block of approximately 700 grams the price, according to purity, would vary between 190,000 and $240,000. 32The evidence of Ms Suto was that ultimately, after having a sleep and refreshing herself and having a discussion with Mr Cuzman of a relatively short nature, as his counsel points out, she received a box that was, on her evidence, filled with cash. It is clear having regard to the totality of the evidence in the trial that the quantity of the prohibited drug, said to be heroin, that was delivered by her was no less than 500 grams, and in fact I am satisfied beyond reasonable doubt that it was in the vicinity of 700 grams. 33Mr Coroneos' submission as to the quantity was, with respect to his skill, entirely optimistic and unsubstantiated by the evidence that the jury must have accepted. Of course its purity is a matter of speculation. But given the manner in which it was packaged, its size and its cost, it was not difficult for fact finding in this case to conclude as I have. 34As I said, she met Mr Cuzman. The evidence she gave was that Mr Cuzman seemed unhappy at the arrangement of her arrival, but it is clear that he left the home of Mr Bucataru, who was his brother-in-law - Mr Bucataru being married, as I understand it, to Mr Cuzman's sister and returned at which time she was given the shoe box that I referred to containing the cash, which amounted to $206,000 on the evidence of the trial, given coded conversations. Having been given the cash, within a short period of time, she drove directly back to Sydney and left the cash at the residence at Russell Lea, where Magyari had his office and took some cash for herself. 35A number of submissions were made about the role of the two prisoners. Suggestions were made that the prisoners in terms of their involvement in what I have outlined were conduits for others or were agents or ciphers for other interests. There is no evidence from the prisoners or any other source as to this. Of course, it is suggested that inferences may be drawn from the surrounding circumstances. But the plain fact is that the Crown, to the jury's satisfaction, established beyond reasonable doubt that the two accused were involved in a joint criminal enterprise to take possession of a prohibited drug worth $206,000 that had been provided through Ms Suto by a person who was very substantially involved in the prohibited drug trade on a national level. 36Magyari was a person who supplied prohibited drugs to others in substantial quantities, and regularity circumstances. This was evidenced by the witness from Melbourne, whose evidence was particularly relevant to the issue of whether heroin, that was intercepted when Mr Bodo was arrested, was to be taken to Melbourne or Adelaide. 37The two accused, as I said, were trusted by Mr Magyari. They were certainly known to him personally and were known to him personally for a number of months before the transaction in question. They continued to have a relationship with Mr Magyari up until the time of his arrest. Subsequent telephone intercepts to the events giving rise to count 1 reveal regular contact between Mr Magyari and Mr Cuzman, to the knowledge of Mr Bucataru, particularly, from early May onwards. Mr Bucataru's conversations reveal a knowledge of developments relating to Mr Cuzman's movements and the like. 38Of course, this continuing business relationship is not fully explained. But there is no evidence from either of the prisoners or from the telephone intercepts of any legitimate business interest that the three men could have been involved with. In fact in the subjective cases of the prisoners there was not even a scintilla of a suggestion of any legitimate common business interest either of them could have had with Mr Magyari. 39Mr Cuzman has claimed, in hearsay form through the material tendered, that he is a panel beater or a part-time panel beater. Mr Bucataru is a truck driver. There is no suggestion of Mr Magyari's interests being in those industries through the telephone intercepts. 40In the absence of any other evidence other than the evidence at trial as to what occurred, the only conclusion that can be reached is that they were the owners of the $206,000 that was given to Ms Suto. They then became the owners and possessors of a significant quantity of a prohibited drug. The only reason they would take possession of that prohibited drug would be for its ongoing supply. Whether they sold it to another party as a lump sum or transaction, or cut it down for street distribution, is a matter for speculation. I appreciate, of course, as I will note in a moment, that there is no evidence of them being involved in street distribution of heroin. There is no evidence of the indicia of supply at each of their homes. But ultimately, with the state of the evidence even allowing for those matters, I am unable to conclude what the true situation is. 41I am prepared to conclude that the prisoners were not involved in the prior supply of prohibited drugs. There is no evidence of this, and whilst one might be suspicious of their relationship with Mr Magyari, going back to September, it could well be that the commencement of their relationship, as it is known to the Court, was simply the beginning of a series of events that culminated with Ms Suto's trip to Adelaide. 42I am satisfied on balance that this particular criminal conduct on the part of the prisoners was uncharacteristic. I note in relation to their criminal histories that they have no prior involvement in drug supply and as I have said there were no indicia of involvement of drug supply at least at a street level at their homes. 43It could be said, of course, to hand over $206,000 to a person that the two prisoners met twice before, as an agent for a person substantially involved in the dissemination of drugs, does not have the hallmarks of an uncharacteristic course of conduct. I note that the evidence of the financial position of the prisoners is not complete. The Crown pointed out though that the evidence is most unsatisfactory. Then again the Crown would have had the opportunity to make investigations in relation to these matters and whether the prisoners have other assets and the like is a matter of speculation. 44I am mindful of the fact that Mr Magyari was Hungarian and the two prisoners had their origins in Romania. I appreciate from Mr Magyari's references to the two prisoners that there may have been some, if I can call it, ethnic tension in the relationship. The reference to the two prisoners as "gypsies" was seemingly uncomplimentary, as I said. He also spoke rather deprecatingly of their generosity and hospitality that he expected to be extended to Ms Suto. This, however, did not stop Mr Magyari doing business with the prisoners and certainly did not stop them doing business with him. 45They are both jointly liable and there is no basis for distinguishing between them on the objective facts. There may be some suggestion in relation to the way Mr Bucataru organised to meet Ms Suto, and Mr Cuzman came in to meeting her, that Mr Bucataru could have been acting at the beck and call of Mr Cuzman. But in reality they were in fact acting in tandem. 46As has been acknowledged, the guilt of the prisoners in relation to count 4 arose from this transaction. It was clearly open for the jury to find the accused guilty of count 4 given the overwhelming evidence that Mr Magyari was involved in the drug trade, given its satisfaction beyond reasonable doubt of the prisoners' guilt in relation to count 1, and given the continuing business relationship evidenced through their contact up until the time Ms Suto delivered the package. This is accepted by the learned Crown in his submissions. Thus the sentence for count 4 will be entirely concurrent with the sentence to be imposed in count 1 for each accused. 47In relation to the assessment of the objective facts in the context of count 1 having a standard non-parole period, it might be fairly said that in terms of the measure of the objective seriousness there was really no evidence of any matter personal to the prisoners that reflected upon that aspect of the matter. I am mindful of the debate that is going on in the superior courts of the implications of the decision in The Queen v Muldrock ((2011) 244 CLR 120) and particularly consideration of the relevance of the objective seriousness of the offences to matters personal to the relevant offender. The only matter which appears directly relevant in the personal picture available in each case, such as it is from the evidence, is that the conduct of the prisoners, as I said, was "uncharacteristic". But, in reality, this might be fairly regarded as a mitigating "subjective" factor rather than a matter that is concerned with an assessment of the objective facts. 48I pause for a moment to say, however, that even allowing for the fact that the prisoners' involvement in this criminal enterprise was "uncharacteristic", it is clear on the evidence it was not "spontaneous" and was, giving a very favourable view of the contact with Mr Magyari over a number of months, the culmination of the existing relationship between the two prisoners and Magyari. 49Neither of the accused, as I mentioned earlier, gave evidence of the trial or in sentence. This is of some significance, as I have said, in relation to the issue of fact finding, particularly in relation to the role of the prisoners and what was put on behalf of the prisoners by their learned counsel. I must point out in this context that there is absolutely no explanation offered by either prisoner in the evidence that has been presented to this Court as to how Mr Cuzman, who has either worked for himself as a panel beater or been unemployed for many years before the commission of this offence depending upon which history one accepts, was able to gain access to the $206,000, which, at least by Mr Price and the Crown, is conceded to be established from the evidence at trial. As I pointed out, there is no evidence as to what was to be done with the heroin that was purchased. 50I pointed out earlier that I have taken into account the submissions made about the two prisoners living in neat but modest premises. I have taken into account the evidence of the prisoners being family orientated and the like that emerges from the references that have been tendered and to some extent emerged from the evidence at trial from the Adelaide police who searched their premises when they were arrested. 51I am mindful of the fact that there was found no evidence of indicia of drug supply such as electronic scales, packaging implements, other drugs, large sums of cash. In effect, I am very mindful of the evidence of the normalcy of their suburban existence. However, on the other hand, no evidence emerges as to how they could have gained access to $206,000 to purchase a significant quantity of heroin. They obviously did not go to the bank to borrow the money. They did not have jobs that would have provided them with that sum of money. They did not even have businesses that could have provided them with that sum of money. Mr Bucataru had been a truck driver who had a business that had apparently gone into "bankruptcy" some years before. 52One inference that is available, of course, from the state of their properties and the significance of the criminality proven, is that the two prisoners were very clever in disguising their true activities. Not all drug dealers, particularly those involved in supplying substantial amounts of drugs in wholesale and who themselves, like these prisoners, are not users of drugs, are incapable of putting up a front of respectability to hide the enormity and significance of their criminality. In other words, not all wholesale dealers in prohibited drugs are like Mr Magyari, with all the indicia of drug supply there to be seen. 53However, having accepted on the balance that their involvement in this particular scheme was uncharacteristic, this criminality reflected in count 1 demonstrates a plunge into very significant criminality, armed with a very large sum of cash from a source which has no explanation. Of course, I cannot conclude that they were previously involved in drug supply. I also note the evidence of Ms Suto as to Mr Cuzman's great circumspection in dealing with her. Of course, this might reflect his lack of experience in being involved in such transactions. 54With regard to their subjective cases, because the men are related by marriage, they have common family members and have common backgrounds in many respects. There are many common features. In fact they not only have a common psychologist reporting, which to my mind was unfortunate, they have many common referees, showing the intertwinement of their lives socially and in other ways. 55If I could just deal with each of their cases separately. Firstly, I have noted their criminal histories such as they are. In the case of Mr Bucataru there were two appearances in the Local Court in New South Wales about twenty years ago. 56In the case of Mr Cuzman he likewise has two appearances at the Local Court in 1992 and 1993 in New South Wales, both men having briefly lived in New South Wales on their arrival in Australia from Romania, having come here through different routes. Mr Cuzman was born on 27 November 1971, thus on my calculation has just turned forty-one years of age. Mr Bucataru was born on 18 February 1964 and thus is now forty-eight years of age. I accept that their criminal histories are insignificant. In fact, ultimately, they are irrelevant to the sentencing process and may to some extent be taken into account in their favour in a range of ways, both in the context of the determination of the appropriate sentence and in the consideration of the non-parole period. 57There are some other features of the matter that I bear in mind before I turn to the evidence they respectively produced and these features are common to both prisoners. After having been in custody for several months they were released on bail. It is suggested their bail conditions were onerous. I do not agree that they were onerous. They were required each to report regularly. But what else would the State of New South Wales expect of people from Adelaide granted bail, charged with very serious offences and permitted to return home? 58Having said that, I have taken into account as relevant, but not greatly mitigating, the fact that they were on bail for an extended period of time. I have taken into account the fact that there has been a considerable delay between their charging and the final resolution of the matter which I accept is not their fault nor the Crown's. The trial of the two prisoners was to start in early 2012 but because Ms Suto had not been then sentenced and it was proper that she should be sentenced before she was called to give evidence. There was a further delay and I am sure this has caused considerable angst for the two prisoners in the sense that they knew that they were awaiting trial and if convicted inevitable gaol sentences for serious offences. Of course, they were the ones who knew precisely whether they had committed the offences or not. 59I have taken into account the fact that the prisoners have regularly travelled from Adelaide to New South Wales to comply with their bail conditions. Nothing less would be expected by the Court but I appreciate that that has caused some financial hardship and I take that into account notwithstanding their capacity to raise $206,000 to buy the drugs in question. I bear in mind as relevant, but not significant, the fact that the prisoners will serve their sentences in New South Wales, with family and friends in South Australia. 60It is fairly to be said that people who commit crimes that offend the laws of New South Wales and spend time in New South Wales custody, cannot complain of hardship if family and friends reside outside the State or outside the country. There are a number of authorities dealing with the treatment of overseas offenders charged with breaches usually of Commonwealth law importing drugs into Australia. That having been said, it would not be human not to recognise the difficulties the prisoners will have in maintaining contact with their families in the circumstances where the prisoners are both, I accept, devoted family men with young children, devoted wives and the like. 61In relation to Mr Bucataru, firstly, I have a range of references from family members, a minister from his church, accountants that deal with the prisoner, friends, people that have had some business association with him, other members of the Romanian community who have had social and family connection with the prisoner and a medical practitioner who has treated the family of the prisoner and his wife and her parents. The health of Mr and Mrs Cuzman. the father and mother of Christian Cuzman, is revealed in the evidence. Whilst it is unfortunate and sad they are in ill health, that matter is not a matter of great significance in this case. It is a common feature, however, to both prisoners given their family connection. 62These various referees speak of what I have already outlined, Mr Bucataru's devotion to family, being a loyal husband and a devoted father, being a person who has acted uncharacteristically in their view. Of course, the referees who speak of them acting uncharacteristically are obviously unaware of the capacity of this prisoner and his co-accused to raise significant sums of money for this particular criminal enterprise. 63In relation to Mr Bucataru I accept from the evidence available from one referee that the prisoner endeavoured to get himself established in business, was hard working and conscientious, but through reasons beyond his control the business collapsed and the prisoner suffered hardship from that I appreciate that he also has suffered some hardship from a motor vehicle accident. In his case I have a report from Mr Watson-Munro which sets out some social history as it is described. Of course, there is no evidence from the prisoner, or anybody for that matter, on some issues. However, I am prepared to accept the general tenor of the material that confirms the prisoner was born in Romania, he has family in Italy and Romania. His parents are elderly and remain in Romania. He left Romania in his late teens, early twenties, as I understand it, as a result of the fall of the Ceausescu regime. He came here through his connection with Mr Cuzman's sister, now the prisoner's wife, who he knew in Romania. They have two children aged nineteen and fourteen. 64Mr Watson-Munro also provides some history about his employment and the failure of his business. He expresses opinions about the prisoner having symptoms of depression, anxiety and low self-esteem, expressing a view that these are conditions that have their genesis in the prisoner's formative years in Romania. It must be said that this analysis of the prisoner's medical conditions is unconvincing in many respects. That was acknowledged in the course of submissions. Mr Watson-Munro is, firstly, a psychologist who did not undertake any psychometric testing of the prisoner. He gave some explanation for that, but ultimately, albeit that he might have had some other information available to him of some medical treatment in the past, his assessment of the prisoner's mental state must be viewed with some qualification. It is the case that his counsel conceded that in fact any assessment of the prisoner's medical condition and mental state does not give rise to consideration of principles that have been summarised in cases such as Hemsley, Engert, Israil and elsewhere. 65In relation to the prisoner's treatment for his anxiety, it is noted that he has received by prescription anti-depressant drugs and medication to assist with his anxiety. It is hoped that he will get some psychological treatment from someone fluent in Romanian but no attempt has been made to obtain such treatment apparently before he committed this crime or before he went into custody. The psychologist noted the prisoner's cooperation with the assessment process and I acknowledge of course his cooperation with this Court as I have earlier point out. 66In relation to Mr Cuzman a very similar picture emerges in respect of his personal circumstances. He is a family orientated person. He has many of the same referees as Mr Bucataru. I have already pointed out that he is seen as having acted uncharacteristically and there are additional references and reports from medical practitioners that have dealt with him over a period of time. In fact there are some reports that predate his arrest in relation to this matter, or predate the trial, showing that he has a number of health issues, including issues with respiration, issues with his heart condition, including a diagnosis of angina with chest pain, conditions in relation to his liver and a diagnosis of what is described as "latent tuberculosis" picked up with skin testing. 67The chest X-rays did not show any evidence of pulmonary lesions, but it is said that sometimes these do not always show up in chest X-rays. Apart from some minor medication, however, he has not been receiving any particular medication for that condition. The report of Professor Horowitz, dated 5 July 2011, diagnoses the prisoner's major problem as being angina. He is identified as a smoker and otherwise does not have any other known coronary risk factors. He is a somewhat large man. It maybe that in part his weight is a contributing factor to his condition. In relation to his wife I note that she has had treatment for anxiety and stress and has been seen in recent times in a report from Dr Phan to be in an emotional state. I have already pointed out that his parents have significant health problems. I have taken into account the circumstances of his wife and his parents but they are not matters of great substance. This was readily conceded in the submissions of Mr Coroneos. That this is not an exceptional case as discussed in cases such as Edwards and the like. 68In Mr Cuzman's case I likewise have a report from Mr Watson-Munro and the same reservations I have about his opinions in relation to Mr Bucataru I have here. He expresses some clinical observations and makes conclusions about what those clinical observations may be consistent with given the medical histories available to him. But the truth is, whatever treatment has been obtained by Mr Cuzman, or Mr Bucataru for that matter, in the past in relation to their mental health, it is not so significant as to explain any causal relationship with the offending behaviour. 69I am prepared to accept the history as provided by Mr Cuzman to Mr Watson-Munro. The prisoner was born and raised in Romania. His family fled the "tyranny of the Ceausescu regime" and crossed into Yugoslavia and suffered considerable privation in Yugoslavia as refugees. I have some understanding, having not experienced it myself but from my general knowledge of the world, that many great difficulties were presented to people fleeing from Romania into other countries and eventually on to Australia, or later on in the 1990's fleeing various States within the old Yugoslavia to freedom. 70This is said to have had a considerable effect upon the prisoner's development in Australia. He came here as a child with no English. He spent time in the Villawood Centre in Sydney and took time to develop any skills in English. Mr Watson-Munro expresses the view the prisoner suffered "considerable adjustment issues" over this period of time. He commenced an apprenticeship as a panel beater and ultimately discontinued that apprenticeship according to Mr Watson-Munro after two and a half years. But according to the resume which I was provided with he has worked as a panel beater or worked in panel beating from 1992 until the present. 71My understanding of the employment history set out in the resume is that effectively since completing employment with a panel beater who was licensed to work in that area, he has effectively worked for himself. He had a some sort of accident in 1987 suffering some injuries which has affected him. Mr Watson-Munro reflects upon his mental health and treatment in the past with antidepressants. In his conclusions, he notes that there was nothing to indicate major psychiatric disturbance in the case. The prisoner gave a reasonably coherent account of his life and whilst these privations as a child have had an effect upon his life, it would appear from the evidence at trial that the prisoner had a generally normal suburban existence. He suffers ill health particularly in relation to his heart condition and some respiratory difficulties. He suffers at the present time, as does Mr Bucataru, from some anxiety, which is to be expected given the legal predicament in which he faces now and in the future. 72With regard to the medical evidence relevant to Mr Cuzman, there is a distinction to be drawn between he and Mr Bucataru. In fact, on analysis, it is probably the most important point of difference but not of great significance. I note no evidence has been produced to the Court indicating any particular hardship in custody, any unavailability of medical treatment or any particular treatment the prisoner can receive whilst in custody. The situation of the sentencing of prisoners with health issues, particularly in relation to their physical health, has been the subject of discussion in a number of cases. One such case is R v Badanjak [2004] NSWCCA 395, there referring back to the South Australian case of Smith and the New South Wales cases of Bailey and Vachelec. In summary the superior Courts have held that generally speaking the health of an offender will only be a factor tending to mitigate punishment when there is evidence to show there is a serious risk that imprisonment will be a greater burden on the offender by reason of ill health or where there is a serious risk that imprisonment will have a grave adverse effect on the offender's health. 73Furthermore, it remains the responsibility of the Corrective Service authorities to provide adequate care and treatment for prisoners. Most conditions can be adequately managed by those authorities without the need for mitigating the sentence that would otherwise be appropriate. Such times that would occur would be relatively rare cases. I pointed out in the course of submissions that only the day before I had sentenced a man with much more significant health problems than Mr Cuzman, where I had positive evidence from the Department of Corrective Services of the treatment of his conditions. 74I have also, as I have pointed out, noted the "hardship" to family members by the separation from the prisoner. But as I have already pointed out, these matters, as was effectively conceded in submissions, are not exceptional matters in the scheme of things. 75I was provided with a large number of authorities and legislative provisions to consider relevant to the sentencing exercise in the context of the facts I have found them. I have taken into account the great assistance provided by the written submissions. It must be pointed out, of course, that the starting point in this matter is recognition of the maximum penalty available in relation to the principal offence and the seriousness of the offending that is represented in the facts. One need not delve into authority with any detail, but it is well known for sentencing in New South Wales, at least, that those involved substantially in the trafficking of prohibited drugs will receive substantial sentences of imprisonment. The maximum penalty, the seriousness of the offending, the character of the offending, reflect the need in this matter when considering s 3A Crimes (Sentencing Procedure) Act, to obviously give considerable attention to the needs for general and personal deterrence. Although, I do not conclude the prisoners are a danger to the community at the present time. The matters also require need for denunciation and making the prisoners accountable for their conduct. 76As I pointed out generally to the learned Crown Prosecutor, it is not a matter for morale outrage, although that sometimes may be appropriate in the particular case. There is also a need, of course, notwithstanding the maturity of the prisoners and no doubt the settled circumstances of their families, to promote their rehabilitation. I also note various authorities such as Gipp, (2006) 161 A Crim R 173, Gu [2006] NSWCCA 104. Kairauz [2005] NSWCCA 247 (at [90]) and the like, emphasising the severity for penalties required for offenders committing crimes of this nature. Apart from s 3A, I have had regard to s 5 Crimes (Sentencing Procedure) Act. It is quite clear that nothing other than a term of imprisonment can be imposed in relation to the matters with which I am now concerned. 77There is a standard non-parole period in this matter of ten years imprisonment. In relation to the categorisation of the objective seriousness of the offence I have already set out my findings of fact. A recent article by his Honour Justice RA Hulme in the November issue of the Judicial Officers Bulletin surveys many authorities of the Court of Criminal Appeal since the High Court judgment in Muldrock which discuss the appropriate approach to sentencing for matters with a standard non-parole period. As succinct and learned as the article is, it is a somewhat chilling article for judges at first instance, because it reflects the fact that within the judges of the Court of Criminal Appeal and in the various judgments of the Court of Criminal Appeal there is some tension or conflict, or disagreement as to the appropriate approach. Of course Muldrock held that it was a mistake to give primary, let alone determinative, significance to the standard non-parole period. The Court was not required to undertake a two stage approach to sentencing as been previously approved in the decision of R v Way when dealing with matters that are caught by Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act. The Court is required to approach the matter applying the principles laid down in the earlier decision of the High Court of Markarian, taking into account the standard non-parole period in conjunction with all the other matters that are to be taken into account in sentencing. 78In that regard, by reference to s 21A of the Act, the Crown urged that I could find as aggravating factors for both offenders in relation to count 1 that the offence was part of planned or organised criminal activity and that the offence was committed for financial gain. I have given these matters both considerable thought. There is, as is pointed out in Mr Coroneos's written submissions, particularly, a number of authorities which reflect upon the fact that some particular offences have intimately bound up in their character features which are otherwise may be regarded as aggravating factors. There obviously was a degree of planning and organising with Mr Magyari for the arrival of Ms Suto. Most of the planning of course would have been on Mr Magyari's part. The two accused of course had to organise to meet her and arrange the payment of the moneys, there is no basis for concluding that these accused are participants in 'organised crime' as that expression is generally understood. Ultimately I conclude that whilst those matters (planning and organisation) are features of the case, they are not necessarily aggravating factors as s 21A(2) matters are understood, given their intimate connection with the circumstances that give rise to the conviction of the prisoners. The facts speak for themselves without the aid of s 21A(2) of the Act. 79I am satisfied beyond reasonable doubt that the offences were committed for financial gain, but again this is not a matter of great significance pursuant to s 21A(2) because one might have thought that the legislature, in fixing the maximum penalty as it is for this offence, recognised that offences involving a commercial quantity of prohibited drug in the appropriate case were by definition, transactions of considerable financial substance. It is to be borne in mind of course that a commercial quantity of heroin is not less than 250 grams, but less than one kilogram at which point the quantity becomes a large commercial quantity. Quantity, of course, is not the only, or necessarily major, determinate of the objective seriousness of an offence of this type. But it is not without significance that the quantity involved was substantially greater clearly than the minimum quantity of prohibited drug required to be proven by the Crown to establish the charge. The greater the quantity the greater the financial gain as a general rule. 80I pointed out also earlier that it was the case that the jury had the opportunity in the determination of the issues of fact before them, given the matters raised on behalf of the accused, to acquit the accused in relation to count 1 and find them guilty of the lesser charge. But no such relevant doubt was in the minds of the jurors. 81With regard to the submissions that were made by the parties, a number of matters raised in oral submission were the subject of comment by me, largely reflected in the reasoning I now make. In relation to the issue of parity as it arises directly in this case, firstly, no issue of disparity arises ultimately, save for a minor aspect, that is the health of Mr Cuzman, between Mr Bucataru and Mr Cuzman. The objective seriousness of the offending is identical for both men, the subjective circumstances are almost identical, save for the matter of Mr Cuzman's physical health. 82It was submitted that the Court should have regard to the sentences imposed on Ms Suto and Mr Bodo. Mr Bodo of course was convicted in relation to a criminal enterprise for which these accused were acquitted. Furthermore, Mr Bodo clearly was a hireling, acting as an employee, as was Ms Suto, of Mr Magyari. What, if anything, he knew about what he was delivering is not entirely clear from the material available to me. 83With regard to Ms Suto, of course, she was found guilty of an offence pursuant to s 25(1) Drug Misuse and Trafficking Act which carried a maximum penalty of fifteen years. She was a hireling or employee of Mr Magyari. I have already made comments about her knowledge of his affairs and I acknowledge in sentencing her that the sentencing judge had to take into account the fact that she had been involved in other criminal activity with Mr Magyari dealing with the proceeds of crime and undertaking courier expeditions on his behalf. Those matters are set out clearly in Judge Tupman's judgment. But ultimately, in relation to the criminality reflected in count 1 for which these prisoners are to be sentenced, noting the actual sentence imposed upon her for the criminality admitted by her, no issue of strict parity arises. 84Firstly, there are different maximum penalties at work for these two prisoners. Secondly, they were, in respect of the offences for which they have been found guilty, the principals. She was not. Thirdly, the rewards for them were clearly greater given what they were able to pay to her for the drugs belonging to Magyari that she delivered. She was of course younger than they were. The issues of parity discussed in, for example, in the decision of Jimmy [2010] NSWCCA 60, to which the Crown refers in its submissions, particularly in the judgment of Campbell J and in the judgment of Rothman J, make it very clear that "equal justice", if I might use that expression, or to use another expression that flows from Lowe v the Queen, "justifiable sense of grievance", only arises when those that are alike are treated unalike. As Rothman J said in Jimmy: "Equal justice requires those who are alike to be treated alike and those who are unalike to be treated to the extent of their unalikeness". 85It might be fairly said that Ms Suto was very sympathetically and leniently dealt with by her Honour. But ultimately the distinction between the offending of these men, by reference to the maximum penalties and the role of the prisoners, to Ms Suto is very substantial indeed. No issue of "parity" arises, although I have taken into account as a relevant matter the sentence imposed upon her. 86Mr Coroneos on behalf of Mr Bucataru submitted, in my view optimistically, that the appropriate sentence that might be imposed in this matter all things taken into account might reflect a range of sentence of between four years and four years and six months with a non-parole period of two years and two years six months. Mr Price's assessment of the matter was not quite as optimistic as that. Those suggested sentences fall, in my view, given the learned statistical information and the comparative cases to which I have been taken, well outside the range for offending of this type, given the role of the prisoners. It might have been, in the context of dealing with a similar quantity of heroin, appropriate to consider a sentence in the range suggested by Mr Coroneos if the prisoner's role had been clearly shown to be that of "couriers" or "emissaries". But no such finding could be made, either beyond reasonable doubt or, on the balance of probabilities if it was a matter requiring proof by the prisoners which I doubt. 87With regard to the sentences to be imposed on the prisoners, I have determined that there are "special circumstances" pursuant to s 44 Crimes (Sentencing Procedure) Act 1999. There is a requirement in each case to make an adjustment of the relationship of the non-parole period in respect of count 1 to the balance of sentence. I note for a start that each prisoner will be serving his first term of prison custody. I note that each prisoner will require professional assistance to adjust to community living on his release and particularly, in my view, receive counselling in relation to those factors, not clearly explained, as to why they would involve themselves in such serious criminal activity. Furthermore, Mr Cuzman will need professional assistance on his release from custody to receive counselling and treatment in relation to his various medical conditions. Taking the most "favourable" view of Mr Watson-Munro's report, in the case of Mr Bucataru, I am prepared to find that he will need professional assistance to adjust to the impact of custody upon him and for the symptoms of anxiety and the like that he now exhibits and has exhibited in the past, the subject of comment by Mr Watson-Munro. 88The Crown did not specifically address me in relation to special circumstances. But whilst in fairness to the learned Crown he may properly have seen that as a matter that probably was not a matter for comment by the Crown, he did not speak against a finding of special circumstances. 89In relation to matters that arise pursuant to s 21A(3) so far as they are relevant to this matter, I have already concluded that the prisoners did not have any significant record that was significant of previous convictions. In fact as I said the records are irrelevant. I am prepared to find on balance that each prisoner was thus a person of good character. Of course, it needs to be understood properly in the context of ample authority that reflects upon the fact that good character may carry less weight in circumstances where people commit serious offences, particularly offences relating to the dissemination of drugs into the community. For example, in the decision of Kennedy v R [2010] NSWCCA 260, it was held less weight may be attributed to a prisoner's good character where general deterrence is important and the particular offence before the Court is serious. Of course, it goes without saying that there are many crimes where the seriousness of the offence far outweighs good character or any other particular subjective characteristic. But I accept that it is not irrelevant and it is a matter that the prisoners are entitled to have recognised as a matter of some mitigation. 90As to their likeliness to re-offend and their prospects of rehabilitation, I am unable to make a conclusive finding one way or the other. Their backgrounds of stable domestic existence and the like are matters that militate in favour of such a finding. But the unanswered questions of how they possessed of such a substantial sum of cash and their interest in obtaining such a substantial quantity of heroin leave a degree of disquiet about the future in that respect. In my view this is another reason for an extension of the balance of sentence in its relationship of the non-parole period, because they will need, in my view, positive direction from the appropriate Parole Authority to assist them to avoid being tempted to commit crimes of this type again. There were no other mitigating factors that could be found on balance pursuant to s 21A(3) of the Act. I have addressed the particular matters raised by the two counsel for the accused as well as the Crown in the oral submissions that the Crown made. 91One other matter that I adverted to, which I just briefly note, was the summary of what are called comparative cases and the cases brought to my attention of a comparative nature, not just in the Public Defender's list presented by the Crown but in the Schedule under Recent Sentences Commercial Quantity of Prohibited Drugs. It is to be fairly said that sentencing in relation to knowingly take part in supply reveals a limited number of cases. That having been said, the legislature recognises both, for the purposes of supply, and knowingly take part in supply of a commercial quantity of a particular drug such as heroin, the same penalties apply. Frankly there is really no distinction between a substantive supply and being knowingly taking part in supply in a case such as this, having regard to the facts as I have found them. 92I also note in relation to the cases that I have considered that the more recent cases since the introduction of Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act are clearly more relevant than authorities that pre-date that amendment. Of course, every case is different and needs to be considered on its merits. Sometimes comparative cases are of little assistance, but the very very limited statistics and the comparative cases brought to my attention, gave the Court some assistance in relation to the range of penalty that has been imposed for offences under the same provision that these prisoners have been found guilty. 93I trust that I have dealt with all the relevant matters that arise from the submissions. I have certainly had regard to all the submissions. In fact I pointed out in the course of the early part of today's proceedings that I went back and listened to the recording of the two hours the parties were before me last Friday not having a transcript of those proceedings. 94Mr Bucataru and Mr Cuzman, I must now sentence you and I again acknowledge the courtesy you have shown the court under, no doubt, difficult circumstances. You can take a seat Mr Cuzman just for the moment. 95Mr Bucataru, in relation to count 1 you are convicted. You are sentenced to a non-parole period of five years and three months to commence from 12 August 2012 and to expire on 11 November 2017. In your case I fix a balance of sentence of three years and three months. That balance of sentence will expire on my calculation on 11 February 2021. In respect of count 4 you are convicted. You are sentenced to a term of imprisonment of three years. You may take a seat. That term of imprisonment will commence on 12 August 2012 and expire on 11 August 2015. 96Mr Cuzman, could you kindly stand up thank you. In relation to the offence in count 1 you are convicted. You are sentenced to a term of imprisonment of five years. That will commence on 12 August 2012 and expire on 11 August 2017. In your case I fix a balance of sentence of three years and six months. That balance of sentence will expire on the same date as Mr Bucataru's sentence, which will be 11 February 2021. In respect of count 4 you are convicted. You are sentenced to a term of imprisonment of three years to commence on 12 August 2012, to expire on 11 August 2015. Just take a seat thanks very much. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 March 2013