R v Pipio [2019] NSWDC 354

District Court New South Wales

Medium Neutral Citation: R v Pipio [2019] NSWDC 354 Hearing dates: 18 April 2019 Date of orders: 18 April 2019 Decision date: 18 April 2019 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: A term of imprisonment of 18 months served by way of an intensive corrections order: at [15]. Catchwords: SENTENCING — Mitigating factors — Good character — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend SENTENCING — Penalties — Intensive correction orders SENTENCING — Relevant factors on sentence — Deterrence — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Age of offender — Bail pending sentence Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: Parente v R [2017] NSWCCA 284 Yardley v Betts (1979) 1 A Crim R 329 Texts Cited: Nil Category: Sentence Parties: Regina (Crown)

Tony Pipio (Offender) Representation: Mr Cooley (Crown)

Mr McCrudden (Offender) File Number(s): 2015/324335

Judgment 1. At the age of 53, a hardworking married man with two children and no criminal record became involved in regular cocaine use which led to him facing a maximum sentence of 15 years gaol today, having pleaded guilty to a charge of supply 135 grams of cocaine contrary to s 25 of the Drug Misuse and Trafficking Act 1985. There is no standard non-parole period for the offence. Courts have said on many occasions that the social consequences of the criminal trade in prohibited drugs are very substantial indeed, including corruption, the undermining of legitimate businesses and a serious level of violence. 2. As the court recently affirmed in Parente v R [2017] NSWCCA 284 in relation to general sentencing principles as they apply to drug supply cases, where the facts of an offence demonstrate drug dealing to a substantial degree a sentence of imprisonment will ordinarily be imposed, and recognition of the serious social implications of drug dealing, reflected, if in nothing else, in the maximum prescribed sentences, suggests that in the ordinary case a sentence other than imprisonment will fail to meet sentencing objectives. 3. The way in which the Court must proceed is to have in mind the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, and in particular have regard to the need for specific deterrence, the protection of the community. The importance of general deterrence in drug supply cases means a consistent message of deterrence from sentencing judges is necessary. The protection of the community is significant, having regard to the social impact of drug use, particularly as an underlying cause of other criminal offending, and the maximum penalty of 15 years imprisonment is a legislative guidepost set at a very high level for drug supply offences. 4. It is true, as Mr McCrudden for the offender says, that full-time custody is the last choice and not the starting point for the imposition of a sentence, and one has to consider other options as s 5 of the Crimes (Sentencing Procedure) Act 1999 provides. 5. What this man did bought him to the attention of a Police strike force investigating supply of prohibited drugs in the Northern Beaches district, well away from his home. 6. Police established from recorded calls that a man named Sakar, whose sentence today has been adjourned, was obtaining his cocaine in 1 ounce deals from the offender Tony Pipio. An ounce is 28.35 grams and is colloquially known as a "one". Pipio was sourcing his cocaine from another person and it appears from what I am told from the bar table though that person is Mr Marcoshoni, who has been dealt with by Acting Judge Grogin and a sentence of imprisonment of five years and six months, in the aggregate, was imposed with a non-parole period of three years and six months. However, it is common ground that there is no question of parity involved. 7. The modus operandi set out in a number of instances involved Pipio meeting up with Sakar and supplying an ounce of cocaine. As the Crown points out there is no evidence of particular financial gain and the offender says in short that he was doing it to feed his habit, but the offences to which he pleaded involved supplies of 1 ounce of cocaine on 11 October 2015, 24 October, 27 October, 30 October and the additional supply of 27.6 grams on 4 November 2015. 8. On 4 November 2015 he was stopped by police on River Road in Revesby. He had small plastic bags containing white powder which was analysed to be cocaine. He was arrested on suspicion of supplying prohibited drugs. The policeman said, "Where's the rest of it? We know it's in the car somewhere", and the offender said, "It's in the middle of the back seat", and they found a large amount of the white substance. And he said, "It is cocaine, fuck me, this is bullshit", and it was analysed and found to be the 27.6 grams of cocaine. Mr Pipio had earlier attended Sakr's home address in Wattle Street to collect the cash needed to purchase the cocaine from his supplier, and he was on his way back to supply the cocaine to Sakr but he was prevented from doing so, having been stopped by police. 9. There is a wealth of subjective material which all speaks favourably of the offender and his prospects of rehabilitation and the unlikelihood of him reoffending. He gave evidence today and was not challenged in relation to a very lengthy statement that he had written with the assistance of his lawyer. It sets out in great detail his background and his financial circumstances, and the circumstances of his onerous bail conditions which involve daily reporting from the time of his arrest, when he served two days in custody, in November 2015 until at least December 2018 when his reporting conditions were altered to one day a week. 10. He said, without challenge, that he instructed his counsel to plead guilty before his first appearance in the matter at Burwood Local Court in November 2015, and he says that he heard his counsel speak to two police officers outside the courtroom and say words to the effect that he would be pleading guilty. Although a trial was fixed for some time ago I accept that in the circumstances a 25% discount on a term of imprisonment should be allowed for the utilitarian value of the plea, notwithstanding that the Crown submits that the discount should be slightly less than that. 11. Mr Pipio acknowledges that he has always accepted that he alone be responsible for being in the position that he is in, and he has no one to blame. He says that he was originally offered small amounts of cocaine for free and he was ashamed to say that he liked it and as time went on he bought more and more. He told me today that he was spending up to $1,000 a day on his habit, and somehow hiding that from his wife who is a respected teacher and who obviously has careful control of family finances, but he was able to secrete in some fashion earnings from his business in the motor trade so that he could continue to purchase cocaine. 12. He describes in his statement and in the history given to Mr Watson‑Munro, psychologist, the change in both of his sons who were, prior to his arrest, well-mannered and hardworking, but since that time there had been a gradual and serious deterioration in their behaviour, with one of them being admitted to St John of God Hospital for drug addiction. 13. He has worked hard, along with his wife, over the years and purchased property and run a successful business, and apart from this episode has always been a law-abiding citizen who pays his tax promptly. He confirms that all the income that is recorded in the business and personal records is from legitimate sources. Although a psychologist was retained there is no suggestion that there is causative relationship between the diagnosed depressive disorder and his offending, and neither did Mr Pipio seem the sort of man who would shelter behind a psychiatric diagnosis. Rather, as he admits, he foolishly started taking drugs for his own pleasure and enjoyment and was engaged in the supply to fund that illicit habit. 14. I take account of the number of references, which as I have said, speak glowingly of his background and his future prospects. 15. The protection of the community, as King CJ said in Yardley v Betts (1979) 1 A Crim R 329, is also contributed to by the successful rehabilitation of offenders, and that aspect of sentencing should never be lost sight of. The protection of the community is a critical matter and it is a critical matter to consider, in fact, the paramount matter to consider, when one turns to the ultimate submission made by Mr McCrudden, namely that a term of imprisonment is justified in these circumstances but that the term of imprisonment should be served by way of intensive corrections order. That is the course that I propose to take, in light of the factors to which I have referred. 16. The orders that I make are: 1. The offender is convicted of the offence. 2. There being no other appropriate penalty, I impose a sentence of imprisonment of 18 months. 3. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the court directs the sentence to be served by way of an intensive corrections order commencing today. 4. The offender is to report to the OIC at the Leichhardt office of CCS by 5 pm on Friday 26 April 2019. 5. The conditions to apply during the term of the order are as follows: 1. You must not commit any offence. 2. The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance. 3. The offender must abstain from use of any illicit drugs. 1. Failure to comply with the conditions of this order may result in further sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order. 2. Offender is to attend the Registry for finalisation of the intensive corrections order. Note – These extempore remarks were revised without access to the court file