R v Pompiliu Tutoveanu [2005] NSWCCA 149 (20 April 2005)

CITATION: Regina v Pompiliu Tutoveanu [2005] NSWCCA 149

FILE NUMBER(S):

2005/18

HEARING DATE(S): 20 April 2005

JUDGMENT DATE: 20/04/2005

PARTIES:

Regina, Pompiliu Tutoveanu

JUDGMENT OF: Grove J Hulme J Barr J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0818

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

COUNSEL:

P Barrett

R A Hulme SC

SOLICITORS:

S Kavanagh

Catherine Hunter

CATCHWORDS:

LEGISLATION CITED:

DECISION:

Leave to appeal granted. Appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

2005/18

GROVE J

BARR J

HULME J

20 APRIL 2005

REGINA v POMPILIU TUTOVEANU

Judgment

1 GROVE J: I agree with the judgment of Justice Barr.

2 HULME J: I agree with the orders of Justice Barr and substantially with his Honour's reasons.

3 BARR J: The applicant, Pompiliu Tutoveanu, seeks leave to appeal against sentences imposed in the District Court. The applicant stood trial on a charge of knowingly taking part in the supply of a prohibited drug, namely not less than the commercial quantity of heroin. The jury found him guilty. Before sentence he pleaded guilty to a second charge, namely supplying not less than the commercial quantity of heroin. Ainslie-Wallace DCJ sentenced the applicant on the first count to imprisonment for twelve years with a non-parole period of six years and on the second to imprisonment to imprisonment for nine years with a non-parole period of four years. The second sentence was accumulated upon the first in such a way that the total effective sentence was one of thirteen years with a non-parole period of eight years.

4 On 25 September 2000 discussions took place between David Kirikian and Neagu Petrea about the supply of heroin by Kirikian. Petrea was an acquaintance of the applicant. On the following day Petrea and the applicant spoke about raising money to buy it. The applicant began to make inquiries elsewhere about raising money. The applicant lived on the Gold Coast and Petrea also lived in Queensland. They met at Sydney airport on 28 September and drove to a place where they met Kirikian by arrangement. The applicant was present when Kirikian and Petrea discussed the supply of heroin. They spoke about a twelve and a half ounce block at a price of $50,000.00. They spoke about obtaining the heroin on credit for a period of three or four weeks. A little later the applicant spoke by telephone to a person in Romania, his country of birth, and tried to arrange a loan of $50,000.00 for a period of three months. Between then and 15 October 2000 Petrea and Kirikian spoke a number of times on the telephone about the intended supply. There were further discussions about the amount of heroin required and an agreement was reached for the extension of credit. Kirikian arranged with Petrea, his supplier Nguyen and a man called Sukkar, an associate of Kirikian’s, to meet on 15 October to supply the heroin. A man called Florin Pascu, who was living with the applicant, also become involved. On 14 October Pascu and Petrea drove from the applicant’s house on the Gold Coast to Sydney, using the applicant’s car. On the arranged day, 15 October, Nguyen brought the heroin to Kirikian’s house to be collected there by Petrea. Pascu drove the applicant’s car to the unit in order to collect Petrea and the heroin.

5 All these things had been observed by investigating police officers, and they followed the car. After it entered Queensland on 16 October they stopped and searched the car. Seven hundred grams of heroin were found. Pascu, the driver, telephoned the applicant from the roadside and the applicant told him to remain calm. After that the applicant made a number of telephone calls, one to Petrea to tell him about the seizing of the heroin and another to Pascu to give him a false story to tell to the police. Those events were the subject of the charge of which the jury found the applicant guilty.

6 On 17 October Petrea told Kirikian that the heroin had been seized by the police and asked him to speak to “his cousin”. That was a reference to the applicant, and Kirikian spoke to him. There was a meeting, attended by Kirikian, the applicant and Petrea, at which it was arranged to have a further delivery of heroin made. Her Honour was satisfied that the purpose of that delivery was to make money to pay for the heroin which had been seized by the police.

7 The second delivery was arranged for 16 November. Of course, Kirikian’s source was no longer prepared to extend credit, and payment had to be in cash. The applicant came to Sydney with the money and gave it to Sukkar, who was to hand it over in exchange for the heroin. Things went wrong. The suppliers kept the money but refused to make over the heroin.

8 A number of conversations followed and it was arranged that a further supply of heroin should be made, but for cash. Accordingly, the applicant again travelled to Sydney. He took $40,000.00 with him. The sale was made. The applicant was arrested with the heroin at his feet and the money in the car. This supply was the one of which he pleaded guilty.

9 Following the verdict and the plea of guilty, there was a substantial dispute about the facts. It was submitted on behalf of the applicant that the only part that he had played was to offer assistance by lending his car and his house to Petrea and the others. It was submitted that some of his conversations about raising money were really directed towards raising bail for Pascu. Her Honour rejected these submissions.

10 Her Honour was satisfied that the applicant’s participation in the second supply was entirely for his own commercial benefit, part of which was, of course, to make up the losses resulting from the seizure of the heroin first supplied.

11 The Crown submitted to her Honour that the applicant was the principal of the enterprise and that it was he who directed the movements of Petrea and others. During the conversation in which Pascu informed the applicant that the police had seized the heroin he called him “boss”. Her Honour was not satisfied that that was so but noted that throughout the negotiations Petrea kept the applicant informed, so that he was well aware from time to time of what was happening. Her Honour expressed herself satisfied that the applicant was “at least equal” with Petrea and Kirikian in the enterprise and went onto observe that each had different roles to play in the process.

12 By the time her Honour sentenced the applicant Kirikian, Nguyen and Petrea had been sentenced. The Crown had appealed against Nguyen’s sentence and the Court of Criminal Appeal had given judgment. The results in their cases may be summarised as follows.

13 Kirikian pleaded guilty to two counts of supplying a commercial quantity of heroin and gave an undertaking to assist the authorities. He gave evidence at the applicant’s trial. The sentencing judge, Patten DCJ, would have begun with a head sentence of twelve years but reduced that period to nine years in recognition of the early plea of guilty and made a further reduction of the head sentence to six years to acknowledge the value of the assistance given and promised. So there was a head sentence of six years with a non-parole period of three years. Nguyen pleaded guilty to supplying a commercial quantity of heroin and asked the sentencing judge to take into account knowingly taking part in the supply of a commercial quantity of heroin. He was given an inadequate sentence and on appeal the Court of Criminal Appeal increased it to a head sentence of eight years with a non-parole period of five years. In giving judgment the Court said that it considered a starting point of eleven years appropriately reduced for the factors I have named.

14 Petrea also pleaded guilty to one count and asked for another to be taken into account. The sentencing judge began with a head sentence of twelve years and reduced it to nine years and seven months to take account of the plea. A non-parole period of six years was fixed.

15 There is a single ground of appeal, namely that the sentences offend the parity principle.

16 Having found that the applicant’s role was at least equal with those of Petrea and Kirikian her Honour said -

I consider that the sentences imposed on Kirikian and Petrea provide parity by which I propose to sentence the offender.

17 It was submitted to this Court that given those findings, and all other things being equal, the applicant ought to have received a sentence comparable with those of Petrea and Kirikian, namely a sentence starting at twelve years and reduced for appropriate features. There were, it was submitted, two features which ought to have caused her Honour to reduce the total sentence to a lower period still, namely the fact that the applicant had pleaded guilty to the second count and that he had no prior convictions. It was pointed out that Kirikian had a number of prior convictions, including, in 1991 and 1995, convictions for supplying prohibited drugs. There were several offences which seem to have been concerned with cannabis.

18 However, against her stated intention, her Honour imposed a sentence which was equal to the starting point for the co-offenders for both offences, then partially accumulated the sentence for the second offence so as to increase the total sentence. Thus, instead of being somewhat less than twelve years, the head sentence was thirteen years. It and the non-parole period ought to be reduced accordingly.

19 There is no rule of law that requires co-offenders to be given the same sentence for the same offence, even if no distinction can be drawn between them: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, per Dawson J at 623. As Street CJ said in R v Tisalandis [1982] 2 NSWLR 430 at 431, an assertion that there is a disparity between a sentence under challenge and another which ought to be comparable, if not identical, is but a particular instance of the general proposition that the sentence under challenge falls outside what might be described as the general pattern of sentencing for the crime under consideration. The objective on appeal is the attainment of even-handedness in sentencing and there remains in this Court a power to modify a sentence which conforms with the general pattern, and thus does not offend the concept of general even-handedness, so as to bring it into or towards conformity with another leniently disparate sentence in order to achieve particular even-handedness as between individual sentences which ought to be equivalent or at least comparable. His Honour said this at 431-432 -

Consistently with the foregoing, it has long been recognised that ordinarily the initial inquiry by the appellate court is directed to whether the sentence under challenge, viewed individually, is so heavy as to attract of itself appellate intervention before it will be corrected with a view to eliminating or diminishing any disparity vis-à-vis another sentence which it could have been expected to be equivalent or comparable. Special significance is to be attached to the adverb “ordinarily” in the foregoing formulation of the general approach of the court. An analysis of many cases where an argument based on disparity has been considered, and either upheld or rejected, in recent years will disclose that, where the interest of justice so require, the Court of Criminal Appeal will not refrain from interfering with a sentence which, in the absence of particular disparity, would not have been the subject of appellate intervention. In the interests of justice it has at times been thought necessary, in eliminating or diminishing disparity, to reduce a sentence to a level which would probably be criticised as inadequate.

20 The principle there stated continues to be the law of Australia, as is demonstrated by the judgments of the majority of the Justices of the High Court of Australia in Lowe v The Queen: see the judgments of Gibbs CJ at 609-610, Brennan J at 617 and Dawson J at 623. Wilson J agreed with Gibbs CJ and Dawson J.

21 Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Dawson and Gaudron JJ at 302.

22 What these authorities make clear is that disparity between sentences is not of itself a basis of appellate intervention but a factor to be weighed when the Court considers whether the sentencing process has been attended by error and, if so, whether the Court should intervene.

23 As appears from the authorities I have cited, even when it is possible to say that the respective criminalities of two co-offenders are precisely the same, error is not demonstrated merely by pointing to their different sentences. It is implicit in the applicant’s submissions that her Honour regarded the roles of the applicant, Petrea and Kirikian as the same or as of equal culpability and that her Honour therefore intended to impose equivalent sentences. I do not think that is an entirely accurate assessment of her Honour’s reasons. Her Honour did not say that she regarded the roles of the three as equal and observed that the roles of the various participants were different. Her Honour made particular reference to the role of the applicant in raising finance, to the way in which Petrea kept him informed of what was happening and of the applicant’s coaching Pascu to give answers to the police. Although her Honour was not satisfied beyond reasonable doubt that the applicant was “the boss”, it is implicit in her Honour’s reasons that his role was paramount in some respects.

24 Secondly, it is not correct to say that in considering that the sentences of Petrea and Kirikian provided parity her Honour was expressing any intention to impose sentences which exactly corresponded with their sentences in relevant respects.

25 I would in any event reject the submission that the applicant’s plea of guilty on the second count should somehow have reduced his total effective sentence. The plea could hardly be taken into account in sentencing for the offence for which the jury found him guilty. The sentence for that offence accounted for twelve of the thirteen years of the effective head sentence.

26 I accept that the judge who sentenced Kirikian was entitled to take into account his criminal record. His sentence was not a straightforward exercise, however, and had to take account of the several subjective features which worked strongly in his favour, particularly his offer of assistance. It must be said at the same time that Petrea received a sentence based upon a twelve year starting point, and he had only one conviction, in 1989, for supplying a prohibited drug. Although relevant and serious, that offence was old and could not have weighed heavily in sentencing.

27 It must also be said that in the sentencing of drug offenders, prior good character tends, for well-understood reasons, to be of less value to an offender.

28 I do not think that it has been demonstrated that her Honour fell into error in so differentiating between the culpability and the subjective features of the applicant and the other offenders. In my opinion the applicant has no justifiable sense of grievance by comparing his and their sentences. I would grant leave to appeal but would dismiss the appeal.

29 GROVE J: The orders of the court will therefore be in accordance with those given by Justice Barr.

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LAST UPDATED: 21/04/2005