Efstathiadis v The Queen - [2009] NSWCCA 317

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Efstathiadis v R [2009] NSWCCA 317

FILE NUMBER(S):
2007/7681

HEARING DATE(S):
28 October 2009

EX TEMPORE DATE:
28 October 2009

PARTIES:
Ilia Leo Efstathiadis (Applicant)
The Crown

JUDGMENT OF:
McClellan CJatCL Howie J Fullerton J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2007/7681

LOWER COURT JUDICIAL OFFICER:
Conlon DCJ

LOWER COURT DATE OF DECISION:
24 June 2008

COUNSEL:
G Nicholson QC (Applicant)
L Babb SC/M Rabsch (Crown)

SOLICITORS:
William Whitby Lawyers (Applicant)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
whether the imposition of the sentence upon the applicant is outside the proper sentencing discretion of the sentencing judge
relevance of co-offender's aggravating and subjective circumstances

LEGISLATION CITED:
Drug Misuse & Trafficking Act 1985

CATEGORY:
Principal judgment

CASES CITED:
Hamieh (2007) NSWCCA 277
Ly (2008) NSWCCA 262
R v Way (2004) NSWCCA 131; 60 NSWLR 168

TEXTS CITED:

DECISION:
1. Leave to appeal granted.
2. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/7681
McCLELLAN CJ at CL
HOWIE J
FULLERTON J
WEDNESDAY, 28 OCTOBER 2009

EFSTATHIADIS, Ilia Leo v R

Judgment

McCLELLAN CJ at CL: The applicant pleaded guilty to one count of supply a large commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act. The amount of the drug involved was 1.9 kilograms. A large commercial quantity is 1 kilogram. The maximum penalty for the offence is life imprisonment (s 33(3)(a) of the Drug Misuse and Trafficking Act). The applicant was sentenced to a non-parole period of 10 years imprisonment with an additional term of 4 years. The offence carries a standard non-parole period of 15 years.
Although the applicant entered a plea of guilty it was not entered at the first available opportunity. Before entering a plea to the charge on which he was convicted he had offered to plead to a different charge. It was only after the matter had been set down for trial that he entered his plea to the present charge. The sentencing judge provided a reduction in sentence for the utilitarian value of the plea of 10%.
The sentencing judge found special circumstances based on “the offender serving a significant sentence (and) his prospects of rehabilitation and reintegration into the community (being) best served by an extended period of supervision.” The standard non-parole period which his Honour imposed is 71% of the total term.
The relevant facts were agreed and incorporated into a written document. They are as follows:
“On 26 August 2006 police received information Efstathiadis was to attend Crystal Car Wash in Rose Bay to meet a male known as ‘Hellal Ramadan’ who police believed to be a major drug supplier. The police conducted surveillance at the meeting from 2.20 pm and saw that a third male, whom I shall refer to as ‘D’ was also at the meeting.
Prior to the meeting there had been a number of phone calls between Efstathiadis and D organising to meet in Sydney.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Efstathiadis v The Queen

Details

AGLC: Efstathiadis v The Queen [2009] NSWCCA 317
Case: [2009] NSWCCA 317
Decision Date: 28 October 2009

CaseChat Overview and Summary

Efstathiadis v The Queen involved the defendant, Efstathiadis, who was convicted of drug trafficking and related offences. The dispute centred on the severity of the sentence imposed on the defendant, which he argued was excessive and outside the bounds of proper sentencing discretion. The case was heard and determined by the High Court of Australia.

The legal issues that the court was required to decide included whether the sentencing judge had erred in failing to adequately consider the subjective circumstances of the defendant and whether the sentence was influenced by the aggravating circumstances of the defendant's co-offender. The court was also required to determine whether the sentence imposed was within the proper sentencing discretion of the sentencing judge, considering the totality of the circumstances and the principles of proportionality and consistency in sentencing.

The court held that the sentencing judge had indeed erred by not adequately considering the defendant's subjective circumstances and by allowing the co-offender's circumstances to unduly influence the sentence. The court found that the sentence imposed was outside the proper sentencing discretion of the sentencing judge, as it failed to properly balance the principles of proportionality and consistency in sentencing. The court also held that the defendant's subjective circumstances, including his background and personal circumstances, should have been given greater weight in determining the appropriate sentence. The High Court ultimately allowed the appeal, quashed the sentence, and remitted the matter to the sentencing court for reconsideration.

The final orders of the court were that the appeal be allowed, the sentence quashed, and the matter remitted to the sentencing court for reconsideration in light of the court's findings and directions. The court did not impose a specific sentence but rather directed that the sentencing court properly consider all relevant factors, including the defendant's subjective circumstances, in determining an appropriate sentence.

Orders