R v Gary Kaimonoff and Patricia Mary Roche Scc [1988] ACTSC 38 (1 July 1988)

SUPREME COURT OF THE ACT

THE QUEEN v. GARY KAIMONOFF and PATRICIA MARY ROCHE
S.C.C. Nos. 18 and 20 of 1988
Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Criminal Law - Sentencing - Conspiracy to supply heroin - Accused addicts of drug - Extent of their responsibility against that of entrepreneur.

Crimes Act 1914 (Commonwealth - s.86.

Poisons and Narcotic Drugs Ordinance 1978 - s.4.

Jurkovic v. R. (1981) 6 ACrimR 215

HEARING

CANBERRA 1:7:1988

DECISION

On 6 June 1988 Gary Kaimonoff and Patricia Mary Roche were charged that between 27 November and 21 December 1987 at Canberra and in New South Wales they and one Nesvat Asanovic, who also pleaded not guilty but has not been tried, conspired together and with Joan Tomici to commit offences against a law of the Commonwealth, s.4(2) of the Poisons and Narcotic Drugs Ordinance 1978 of the A.C.T., in that they conspired together and with Joan Tomici to supply the controlled substance heroin to other persons. After trial a jury returned a verdict of guilty against each. The charge of conspiracy was brought under s.86 of the Crimes Act 1914 (Commonwealth). As a result of their conviction the two accused are punishable by virtue of the combined provisions of that s.86 and s.4 of the Poisons and Narcotic Drugs Ordinance 1978 to imprisonment for a term not exceeding 25 years or a fine not exceeding $100,000 or both such imprisonment and fine.

2. Some weeks before 16 December 1987 Ms Roche met Tomici in Sydney and eventually entered into an agreement with him about the beginning of December. Since much of my finding against Ms Roche is based upon admissions made in an interview which took place on the morning of 21 December 1987 with Detective Sergeant Baker, it is necessary to point out that although some of those admissions appear to involve Mr Kaimonoff I do not base any findings against him on anything Ms Roche said to Detective Sergeant Baker.

3. Ms Roche said that the agreement reached was that Tomici would supply her with a couple of grams on credit but once it was sold he would be given the money and would supply some more heroin. She said that she had used some heroin and sold some and that Tomici had supplied her with heroin in Canberra after her arrival from Sydney. She said that he had supplied a couple of grams a day over the last three weeks. The heroin was supplied to her in 2 gram lots which were split into deals. Tomici and she had come to Canberra, she said, because "We knew people here in Canberra and he knew that we could sell it in Canberra."

4. Consistently with the verdicts of the jury and the evidence, I am satisfied beyond reasonable doubt that both Ms Roche and Mr Kaimonoff contacted people in Canberra whom they both knew to be drug users and sold heroin to them. I am satisfied that this was done pursuant to the arrangement originally entered into between Tomici and Roche but subsequently joined in by Kaimonoff.

5. I am also satisfied that they resorted to the Woden Valley Hospital with a view to making contact with people there who might have been drug users at one time but thereafter entered into the Methadone programme designed to cure them of their addiction to heroin.

6. I did not accept that Mr Kaimonoff attended, as he said, at the hospital with a view to entering the Methadone programme himself. It was there that they met a young woman who was on the Methadone programme, trying with what was apparently very considerable success to free herself from her addiction to heroin. Ms Roche invited her to have a talk during which she said (Kaimonoff was present) "We have come from Sydney for a few days" and asked the young woman if she wanted to "get on", an expression which means purchase illicit drugs, later identified as heroin. Fortunately the young woman rejected the offer, saying that she had been away from it for three years and did not use drugs any more and was not interested. She remembered being asked for the telephone numbers of any person who might want to purchase drugs but she appears to have ignored the request.

7. The jury's verdict must be taken to mean that Mr Kaimonoff was a party to the agreement, either from its inception or, as I am satisfied, later. It does not really matter. I am satisfied that he, too, supplied heroin pursuant to the agreement.

8. Tomici pleaded guilty to a charge that between 15 and 21 December 1987 he had in his possession the controlled substance heroin for the purpose of supplying it to another person or to other persons. There was no suggestion that he had any addiction to or even that he used heroin and I was satisfied before sentencing that his aim was straight out commercial profit. His past record showed a conviction for driving with the prescribed concentration of alcohol (.11), a conviction on the same day for being an unlicensed driver and some five months later, on 17 August 1982, a conviction for possessing Indian hemp. I sentenced him to imprisonment for five years and three months, fixing a non-parole period of two years and nine months.

9. There can be no doubt that without the assistance of Roche and Kaimonoff, Tomici would have been most unlikely to be able to sell heroin in Canberra and both Roche and Kaimonoff resorted with him to Canberra so that their local knowledge of the drug scene might be used. This gives an added dimension to the seriousness of their conduct and must be taken into account, particularly having regard to the attempt to sell to a person on the Methadone programme, an attempt which displayed, I think, cynical disregard for the well-being of another person.

10. Kaimonoff was born on 9 January 1953. He obtained his Leaving Certificate in 1969 and completed an apprenticeship as a compositor in February 1974, working thereafter as a chainman until mid-1976 when he travelled overseas with his parents for three months. Returning he worked for his father in the building industry as a supervisor. He was then unemployed for about a year until he began work as a typesetter with some printers at Fyshwick. He came under police notice first in July 1974 when arrested in possession of a small quantity of opium and hashish which he had received from friends overseas. In 1978 his home was searched and five grams of heroin were found. In February 1979 he was found guilty of driving under the influence, fined $500 and had his licence suspended. In May 1979 he pleaded guilty in Sydney to a charge of using heroin. Sentence was deferred upon his entering into a recognizance to be of good behaviour for three years. In July 1979 he was found to have Morphine in his possession and subsequently, on 11 January 1980, was sentenced to three and a half years imprisonment with hard labour on a charge of possessing the controlled substance Morphine for the purpose of supply. A non-parole period of 12 months was fixed. He was released from prison after serving a year and after about two months unemployment gained employment with his father again.

11. Since early 1982 he appears to have been employed for about 10 months. In addition, he has spent about nine months at the Mancare Rehabilitation Centre in Canberra and has been in custody since 19 December 1987 in respect of the present offence. I am satisfied that he has used heroin continually since about 1975. He is a qualified Karate instructor, holding a black belt in that sport.

12. On the charge of possessing the five grams of heroin earlier referred to he was fined $400. On 16 November 1983 he was convicted of breaking and entering with intent to steal and fined $750. On 21 January 1986 he was dealt with on three charges of receiving, one of taking and using a motor vehicle and two charges of larceny by having a sentence of six months imprisonment imposed in respect of each of the charges, that sentence being suspended upon his entering into a recognizance to be of good behaviour for a period of three years. On the same day he was fined $500 for unlawful possession (presumably of goods), $200 for possession of cannabis resin and $25 for possession of cannabis. He has some further traffic convictions to which I do not think it is necessary to refer.

13. Nothing in his record or way of life indicates any reason why leniency should be granted him. I accepted the facts set out in the antecedents reports tendered through Detective Senior Constable Tompsett.

14. The learned Crown Prosecutor submitted that I should find his case to have been worse than that of Tomici. It is true that without Kaimonoff and Roche, Tomici would have been unlikely to have been able to dispose of heroin in Canberra. It is true also that resort to Canberra for the purpose of committing crime must be discouraged. Nevertheless, I am unable to see that the entrepreneur should be treated more lightly than the person who acts as his agent for the disposal of illicit drugs.

15. I think that in Mr Kaimonoff's case the proper head sentence is one which would expire about the end of September 1992. This would have regard to the fact that he has been in custody for a little over six months already.

16. I think the proper non-parole period is one of two years and six months to date from today.

17. Such a sentence would, I think, pay due regard to the need for general deterrence of persons who might resort to Canberra for the purpose of selling illicit drugs. It is, I think, adequate punishment for the offence Mr Kaimonoff has committed. I have had some regard to his prospects of rehabilitation bearing in mind his expressed desire to overcome his addiction. I have taken account of the matters put on his behalf by his counsel. It is, I think, a matter of singular regret that an intelligent man, still young, should find himself in the position in which he is. It is my hope that when he has served this sentence he will reform and make use of the talents which he obviously has to live a life more suited to his dignity as a human being. I express the hope that he will accept the sentence as deserved punishment, not as the revenge of society and use it as a means of rehabilitating himself. I am satisfied that he has the capacity to do this.

18. Miss Roche was born on 9 October 1957, the youngest of a family of six. Her mother died in 1963. I accept as accurate the matters set out in the antecedents report prepared by Detective Senior Constable Tompsett. I also accept without reservation the evidence of her sister Genevieve Roche who was, I thought, a very impressive witness. That evidence and the antecedents report disclose an all too familiar story, that of the child who, lacking appropriate emotional support, perceives himself or herself to be unwanted and unworthy of esteem. In fact she is a personable and intelligent young woman. I formed such a high opinion of her intelligence when she gave evidence during the course of the voire dire proceedings that I was surprised to learn that her formal education was as limited as it was but not in the least surprised to learn eventually that she had qualified for entry to university as a mature age student. There she hopes to study computer technology and English. I am sure she will do well at these studies.

19. I also accept that she has made valiant efforts to overcome her addiction by taking advantage of an opportunity afforded her to attend at Lyndon House, Canowindra, a rehabilitation centre for those suffering from drug addiction. I accepted the evidence of Mr Guthrie in this regard.

20. The tragedy of her circumstances which were recounted in evidence before me was evidenced particularly by a statement she made, which I accepted, that since she has been on heroin she has been unable to laugh or to cry. She said she would do anything to keep the habit going when she was in the throes of her addiction. I can understand this and take it into account as, indeed, I have taken it into account in Mr Kaimonoff's case. I refer to Jurkovic's case (1981) 6 ACrimR 215. But I think I would be failing in the duty imposed upon me if I did not impose a custodial sentence. I think it should be as short as is reasonable, having regard to all the circumstances, but I cannot overlook the fact that she did attempt to sell heroin to a young woman striving to get off the habit. This displayed, as I have already remarked, a cynical disregard for the well-being of another person. Her counsel was unable to put any submission of substance to me on this point.

21. The sentence I impose will indicate, I hope, the view of the community of the offence which Ms Roche has committed. At the same time, having regard to her effort at rehabilitation and her plan to make something of her life, I will impose a relatively short non-parole period to enable her to go about the business of restoring her life to that consonant with the dignity appropriate to a young woman of her gifts and personality. There is, therefore, an element of general deterrence in the sentence which I propose. As well there is an element of punishment but, finally, the sentence is intended to give her the opportunity to enter upon her rehabilitation as quickly as reasonably possible.

22. I propose, therefore, to impose a sentence of three years and nine months imprisonment. This has regard to the amount of time she spent in custody following her arrest. I propose to fix a non-parole period of 18 months.

23. Ms Roche has a number of convictions. They are not, however, nearly so extensive as those of Mr Kaimonoff and, accordingly, they warrant my treating her more leniently than I treat him when otherwise I might well have imposed the same head sentence in respect of each of the accused.

24. I should add that in sentencing the two accused I have taken into account all the matters adverted to in the decision of the Full Court of the Federal Court of Australia in R. v. Jurkovic (1981) 6 ACrim R 215. I have, of course, taken into account the matters put by her counsel on her behalf.

25. Gary Kaimonoff, on the charge of which you have been found guilty by the jury, I record a conviction. I sentence you to imprisonment for a period of four years and three months to date from today. I fix a non-parole period of two years and six months.

26. Patricia Mary Roche, on the charge of which you have been found guilty by the jury, I record a conviction. I sentence you to imprisonment for a period of three years and nine months to date from today. I fix a non-parole period of eighteen months.